[Nan3cy]

Perhaps I'm in garvin's target demo of "left of center", but I've found following this thread to be informative, entertaining, and generally pretty civil, especially when I compare it to some of the discussion that's broken out amongst friends and relatives on Facebook. Sure, there's the odd ---- thrown out there, but in general I think people have been respectful and genuinely engaged. And I appreciate the perspectives presented on both sides.

The story on NPR, my primary source of news and editorial outside of the CardBoard, indicated that several GoP senators have walked back their pronouncements in the past few days, realizing how little there is to gain to appear obstructionist. I haven't heard a single Dem claim that Obama's nominee should be confirmed out of hand, only that there be a genuine process to evaluate his nominee and to consider the fact that Obama was re-elected with a 5M vote majority as an indication of the people having spoken on his judicial nominees, policies and leadership.

Anyway, thanks to the policy and history wonks on this board for enlightening me.

+1

[Nan3cy]

Perhaps I'm in garvin's target demo of "left of center", but I've found following this thread to be informative, entertaining, and generally pretty civil, especially when I compare it to some of the discussion that's broken out amongst friends and relatives on Facebook. Sure, there's the odd ---- thrown out there, but in general I think people have been respectful and genuinely engaged. And I appreciate the perspectives presented on both sides.

The story on NPR, my primary source of news and editorial outside of the CardBoard, indicated that several GoP senators have walked back their pronouncements in the past few days, realizing how little there is to gain to appear obstructionist. I haven't heard a single Dem claim that Obama's nominee should be confirmed out of hand, only that there be a genuine process to evaluate his nominee and to consider the fact that Obama was re-elected with a 5M vote majority as an indication of the people having spoken on his judicial nominees, policies and leadership.

Anyway, thanks to the policy and history wonks on this board for enlightening me.

+1

[ColoradoTree]

Obama declines to attend Justice Scalia's funeral.

Yeah, I understand he and Michelle are going to pay their respects privately at the Supreme Court on Friday, and the Vice President will attend the funeral in the President's place.  I'm not sure there's a right answer to whether or not a President attends a funeral of a Supreme Court justice.  I understand the argument that Justice Scalia was important or consequential enough to rate the President's attendance (which is true), but I also understand the argument that the President's attendance has a tendency to distract from the moment at hand, and would keep talking heads focused on the politics of the coming nomination rather than remembering Scalia himself (which is also true).  I'm honestly not sure whether the President could win, no matter what he did here. 

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

So, a mixed history of this (of the 8 funerals, the President attended 3, the VP attended 2, and 3 happened without either of them).  To me, as long as the President makes a point to pay his respects in person (which he is doing on Friday), I'm fine.  I get that there would be strong feelings about this, and my slight preference may have been for the President to attend the funeral, but I understand the other eight Justices and the Scalia family will be at the Supreme Court as well on Friday, so maybe that's the right thing to do to keep it on the private side?  Not really sure.  This doesn't feel outrage-worthy to me, though. 

[ColoradoTree]

Obama declines to attend Justice Scalia's funeral.

Yeah, I understand he and Michelle are going to pay their respects privately at the Supreme Court on Friday, and the Vice President will attend the funeral in the President's place.  I'm not sure there's a right answer to whether or not a President attends a funeral of a Supreme Court justice.  I understand the argument that Justice Scalia was important or consequential enough to rate the President's attendance (which is true), but I also understand the argument that the President's attendance has a tendency to distract from the moment at hand, and would keep talking heads focused on the politics of the coming nomination rather than remembering Scalia himself (which is also true).  I'm honestly not sure whether the President could win, no matter what he did here. 

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

So, a mixed history of this (of the 8 funerals, the President attended 3, the VP attended 2, and 3 happened without either of them).  To me, as long as the President makes a point to pay his respects in person (which he is doing on Friday), I'm fine.  I get that there would be strong feelings about this, and my slight preference may have been for the President to attend the funeral, but I understand the other eight Justices and the Scalia family will be at the Supreme Court as well on Friday, so maybe that's the right thing to do to keep it on the private side?  Not really sure.  This doesn't feel outrage-worthy to me, though. 

[81alum]

[quote author=DC link=topic=14611.msg156748#msg156748 date=1455799063]
Obama declines to attend Justice Scalia's funeral.

Yeah, I understand he and Michelle are going to pay their respects privately at the Supreme Court on Friday, and the Vice President will attend the funeral in the President's place.  I'm not sure there's a right answer to whether or not a President attends a funeral of a Supreme Court justice.  I understand the argument that Justice Scalia was important or consequential enough to rate the President's attendance (which is true), but I also understand the argument that the President's attendance has a tendency to distract from the moment at hand, and would keep talking heads focused on the politics of the coming nomination rather than remembering Scalia himself (which is also true).  I'm honestly not sure whether the President could win, no matter what he did here. 

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

So, a mixed history of this (of the 8 funerals, the President attended 3, the VP attended 2, and 3 happened without either of them).  To me, as long as the President makes a point to pay his respects in person (which he is doing on Friday), I'm fine.  I get that there would be strong feelings about this, and my slight preference may have been for the President to attend the funeral, but I understand the other eight Justices and the Scalia family will be at the Supreme Court as well on Friday, so maybe that's the right thing to do to keep it on the private side?  Not really sure.  This doesn't feel outrage-worthy to me, though.
[/quote]

Very good point.  And it is possible that the Scalia family asked him to stay away for the very reason you mentioned.

[81alum]

[quote author=DC link=topic=14611.msg156748#msg156748 date=1455799063]
Obama declines to attend Justice Scalia's funeral.

Yeah, I understand he and Michelle are going to pay their respects privately at the Supreme Court on Friday, and the Vice President will attend the funeral in the President's place.  I'm not sure there's a right answer to whether or not a President attends a funeral of a Supreme Court justice.  I understand the argument that Justice Scalia was important or consequential enough to rate the President's attendance (which is true), but I also understand the argument that the President's attendance has a tendency to distract from the moment at hand, and would keep talking heads focused on the politics of the coming nomination rather than remembering Scalia himself (which is also true).  I'm honestly not sure whether the President could win, no matter what he did here. 

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

So, a mixed history of this (of the 8 funerals, the President attended 3, the VP attended 2, and 3 happened without either of them).  To me, as long as the President makes a point to pay his respects in person (which he is doing on Friday), I'm fine.  I get that there would be strong feelings about this, and my slight preference may have been for the President to attend the funeral, but I understand the other eight Justices and the Scalia family will be at the Supreme Court as well on Friday, so maybe that's the right thing to do to keep it on the private side?  Not really sure.  This doesn't feel outrage-worthy to me, though.
[/quote]

Very good point.  And it is possible that the Scalia family asked him to stay away for the very reason you mentioned.

[CornFed]

Indeed, for each of the listed funerals, there are specific circumstances that presumably dictate whether or not the President can/should attend.  This president, however, is seen by many on the right as extremely divisive and regardless of the circumstances it is unfortunate he will not be attending, just to avoid the inevitable arm-waving that partisans on both sides do in these situations.

[CornFed]

Indeed, for each of the listed funerals, there are specific circumstances that presumably dictate whether or not the President can/should attend.  This president, however, is seen by many on the right as extremely divisive and regardless of the circumstances it is unfortunate he will not be attending, just to avoid the inevitable arm-waving that partisans on both sides do in these situations.

[FrankO]

well done...

[FrankO]

well done...

[82lsju]

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

interesting that of the 8 only Scalia and Rehnquist died while in office

[82lsju]

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

interesting that of the 8 only Scalia and Rehnquist died while in office

[terry]

The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.   

Scholars who have researched this issue have argued quite persuasively that there is in fact a textual basis for judicial review in the language of the Constitution. They have argued that when the Constitution was written and ratified, the widely understood public meaning of "the judicial power" included judicial review, and the Constitution was invariably understood to give the federal courts the power of judicial review. So, an originalist who wants to apply the original public meaning of the text should read the grant of the "judicial power" in Article III to encompass judicial review.

Professor Randy Barnett of Georgetown, who is himself an originalist, put it this way:

"[T]he overwhelming majority of courts and scholars are correct, I submit, to accept the legitimacy of judicial review. Judicial nullification of unconstitutional laws is not only consistent with the frame provided by original meaning, it is expressly authorized by the text and it therefore entirely justified wholly on originalist grounds. . . . [T]he original meaning of the “judicial power” found in Article III was more specific than what today is its plain meaning and . . . at the founding, it included a power of judicial nullification. . . .

"Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation than even many constitutional scholars who acknowledge its pedigree realize. . . .

"The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the “judicial power” included the power to nullify unconstitutional laws."

[terry]

The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.   

Scholars who have researched this issue have argued quite persuasively that there is in fact a textual basis for judicial review in the language of the Constitution. They have argued that when the Constitution was written and ratified, the widely understood public meaning of "the judicial power" included judicial review, and the Constitution was invariably understood to give the federal courts the power of judicial review. So, an originalist who wants to apply the original public meaning of the text should read the grant of the "judicial power" in Article III to encompass judicial review.

Professor Randy Barnett of Georgetown, who is himself an originalist, put it this way:

"[T]he overwhelming majority of courts and scholars are correct, I submit, to accept the legitimacy of judicial review. Judicial nullification of unconstitutional laws is not only consistent with the frame provided by original meaning, it is expressly authorized by the text and it therefore entirely justified wholly on originalist grounds. . . . [T]he original meaning of the “judicial power” found in Article III was more specific than what today is its plain meaning and . . . at the founding, it included a power of judicial nullification. . . .

"Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation than even many constitutional scholars who acknowledge its pedigree realize. . . .

"The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the “judicial power” included the power to nullify unconstitutional laws."

[ColoradoTree]

[quote author=ColoradoTree link=topic=14611.msg156754#msg156754 date=1455815591]

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

interesting that of the 8 only Scalia and Rehnquist died while in office
[/quote]

Yeah, I thought about that, and wondered whether the death of a sitting Justice warrants more Presidential attention than a retired Justice.  My initial thought is no, because all provided the same service, but I'm not at all firm in that position.  Obviously it's more shocking and more sudden (not to mention more consequential to our country) when a sitting Justice dies, but it's also unquestionably more political. 

Interestingly, it used to be the norm for Justices to die on the Court, and retirement has been a more recent trend.  Per the Washington Post, 17 of the first 25 Justices died in office, but the last four to die in office have been Justice Scalia, Chief Justice Rehnquist (in 2005), Justice Robert Jackson (in 1954), and Chief Justice Fred Vinson (in 1953).  Of note, President Eisenhower apparently attended Chief Justice Vinson's funeral in 1953, but not Justice Jackson's funeral in 1954.  By my count, 24 Justices have left the Court since Justice Jackson died, all but two of them--Rehnquist and Scalia--by retirement or resignation.*

https://www.washingtonpost.com/news/the-...ery-rare/  (Note: the Post article repeats the error I've seen in multiple stories now on both sides of the political spectrum, which is that the last Justice to die in office prior to Rehnquist was Vinson, but Jackson actually died the next year, also in office.) 

I'm seeing a lot of articles noting that President Obama's absence from Justice Scalia's funeral is "unprecedented in modern history."  Of course, if we're only looking at funerals of sitting Justices, and we define modern history as either "since 1955" or "since 2005"--i.e., one data point either way--then yes, it's unprecedented.  Taking a longer view and including sitting and retired Justices presents a much more mixed picture. 

*For those of you that are interested, the distinction between retirement and resignation of Supreme Court Justices is that retired Justices remain part of the judiciary and are eligible under federal law to be appointed to serve on lower courts "by designation."  Justice O'Connor has been a relatively active retired Justice (mainly in the Ninth Circuit, which covers her home state of Arizona), particularly since her husband's death in 2009, though that stands to reason since she herself has said she wished in retrospect that she hadn't retired.  Justice Souter has been pretty active, too, though exclusively on the First Circuit, which covers his home state of New Hampshire.  Doesn't look like Justice Stevens has done that, though he certainly doesn't have to--the man is 95 years old, after all.  Resignation, by contrast, means leaving the judiciary entirely.  In the former case, the retired Justice would continue to collect his/her usual salary, per federal law.  In the latter case, the resigned Justice would be eligible for a pension, which is usually pretty close to, if not at, the same level as the Justice's last salary.  So, a minor distinction, but figured I'd throw it out there for my fellow members of Nerd Nation.  Retired justices are somewhat analogous to lower federal judges taking "senior status"--a sort of semi-retirement that allows older judges to help relieve crowded dockets by taking some cases as a trial judge or being on some appellate panels, at varying levels of involvement.  In either case, retiring, resigning, or taking senior status vacates the seat, allowing the President to nominate a replacement. 

[ColoradoTree]

[quote author=ColoradoTree link=topic=14611.msg156754#msg156754 date=1455815591]

I was curious about whether this was common, and per Above the Law (http://abovethelaw.com/2016/02/obama-to-...overreact/), this seems to be the breakdown:

2016 (Justice Scalia): Vice President Biden will attend in the President's place.
2005 (Chief Justice Rehnquist): President George W. Bush attended.
2002 (Justice White): Neither President Bush nor Vice President Cheney attended.
1999 (Justice Blackmun): Neither President Clinton nor Vice President Gore attended.
1998 (Justice Powell):  Neither President Clinton nor Vice President Gore attended.
1997 (Justice Brennan): President Clinton attended.
1995 (Chief Justice Burger): President Clinton attended.
1993 (Justice Marshall): Vice President Gore attended in the President's place.

interesting that of the 8 only Scalia and Rehnquist died while in office
[/quote]

Yeah, I thought about that, and wondered whether the death of a sitting Justice warrants more Presidential attention than a retired Justice.  My initial thought is no, because all provided the same service, but I'm not at all firm in that position.  Obviously it's more shocking and more sudden (not to mention more consequential to our country) when a sitting Justice dies, but it's also unquestionably more political. 

Interestingly, it used to be the norm for Justices to die on the Court, and retirement has been a more recent trend.  Per the Washington Post, 17 of the first 25 Justices died in office, but the last four to die in office have been Justice Scalia, Chief Justice Rehnquist (in 2005), Justice Robert Jackson (in 1954), and Chief Justice Fred Vinson (in 1953).  Of note, President Eisenhower apparently attended Chief Justice Vinson's funeral in 1953, but not Justice Jackson's funeral in 1954.  By my count, 24 Justices have left the Court since Justice Jackson died, all but two of them--Rehnquist and Scalia--by retirement or resignation.*

https://www.washingtonpost.com/news/the-...ery-rare/  (Note: the Post article repeats the error I've seen in multiple stories now on both sides of the political spectrum, which is that the last Justice to die in office prior to Rehnquist was Vinson, but Jackson actually died the next year, also in office.) 

I'm seeing a lot of articles noting that President Obama's absence from Justice Scalia's funeral is "unprecedented in modern history."  Of course, if we're only looking at funerals of sitting Justices, and we define modern history as either "since 1955" or "since 2005"--i.e., one data point either way--then yes, it's unprecedented.  Taking a longer view and including sitting and retired Justices presents a much more mixed picture. 

*For those of you that are interested, the distinction between retirement and resignation of Supreme Court Justices is that retired Justices remain part of the judiciary and are eligible under federal law to be appointed to serve on lower courts "by designation."  Justice O'Connor has been a relatively active retired Justice (mainly in the Ninth Circuit, which covers her home state of Arizona), particularly since her husband's death in 2009, though that stands to reason since she herself has said she wished in retrospect that she hadn't retired.  Justice Souter has been pretty active, too, though exclusively on the First Circuit, which covers his home state of New Hampshire.  Doesn't look like Justice Stevens has done that, though he certainly doesn't have to--the man is 95 years old, after all.  Resignation, by contrast, means leaving the judiciary entirely.  In the former case, the retired Justice would continue to collect his/her usual salary, per federal law.  In the latter case, the resigned Justice would be eligible for a pension, which is usually pretty close to, if not at, the same level as the Justice's last salary.  So, a minor distinction, but figured I'd throw it out there for my fellow members of Nerd Nation.  Retired justices are somewhat analogous to lower federal judges taking "senior status"--a sort of semi-retirement that allows older judges to help relieve crowded dockets by taking some cases as a trial judge or being on some appellate panels, at varying levels of involvement.  In either case, retiring, resigning, or taking senior status vacates the seat, allowing the President to nominate a replacement. 

[ColoradoTree]

well done...

Thanks!  Once I heard about the decision, I assumed (apparently correctly) that it would be a crazy political firestorm, but I wanted to figure out the context to see whether the firestorm was warranted. 

Also, for what it's worth, this Politico piece (http://www.politico.com/story/2016/02/ba...z40YHPHpGi) had this to say: "people close to the Scalia family said Obama was making the right choice and that the Friday ceremony at the Supreme Court was the better place for Obama to pay his respects."  I have no idea who those "people close to the Scalia family" are, but if it's at all indicative of the family's preference, then it's the right call. The article also had some more helpful details, like Biden going because he actually had a friendly relationship with Justice Scalia. 

I also think the argument that it's important for the President to attend the funeral because of the expected fierce battle over appointing Scalia's successor (also mentioned in that Politico article) is silly.  I can't believe that the President's attendance or lack thereof would make a Senator more or less likely to vote for the nominee, Sen. Grassley more or less likely to hold hearings, or Sen. McConnell more or less likely to allow a floor vote.  Those actions will depend on a host of factors, but attendance at a funeral simply won't be one of them. 

One other way of looking at this: Of the eight Justices on my prior list, both deceased Chiefs got a Presidential visit to the funeral.  The deceased Associate Justices went 1 for 6 on Presidential attendance.  So perhaps there's a rank issue involved here.  Exploring that further, President Nixon attended Chief Justice Warren's funeral in 1974 (despite the two men reportedly strongly disliking one another), and President Eisenhower attended Chief Justice Vinson's funeral in 1953. So, the last four Chief Justices at least, two of whom died in office and two of whom died following retirement, rated Presidential visits.  Thus, status as Chief appears to be a stronger predictor of Presidential attendance than anything else. 

[ColoradoTree]

well done...

Thanks!  Once I heard about the decision, I assumed (apparently correctly) that it would be a crazy political firestorm, but I wanted to figure out the context to see whether the firestorm was warranted. 

Also, for what it's worth, this Politico piece (http://www.politico.com/story/2016/02/ba...z40YHPHpGi) had this to say: "people close to the Scalia family said Obama was making the right choice and that the Friday ceremony at the Supreme Court was the better place for Obama to pay his respects."  I have no idea who those "people close to the Scalia family" are, but if it's at all indicative of the family's preference, then it's the right call. The article also had some more helpful details, like Biden going because he actually had a friendly relationship with Justice Scalia. 

I also think the argument that it's important for the President to attend the funeral because of the expected fierce battle over appointing Scalia's successor (also mentioned in that Politico article) is silly.  I can't believe that the President's attendance or lack thereof would make a Senator more or less likely to vote for the nominee, Sen. Grassley more or less likely to hold hearings, or Sen. McConnell more or less likely to allow a floor vote.  Those actions will depend on a host of factors, but attendance at a funeral simply won't be one of them. 

One other way of looking at this: Of the eight Justices on my prior list, both deceased Chiefs got a Presidential visit to the funeral.  The deceased Associate Justices went 1 for 6 on Presidential attendance.  So perhaps there's a rank issue involved here.  Exploring that further, President Nixon attended Chief Justice Warren's funeral in 1974 (despite the two men reportedly strongly disliking one another), and President Eisenhower attended Chief Justice Vinson's funeral in 1953. So, the last four Chief Justices at least, two of whom died in office and two of whom died following retirement, rated Presidential visits.  Thus, status as Chief appears to be a stronger predictor of Presidential attendance than anything else. 

[burger]

Indeed, for each of the listed funerals, there are specific circumstances that presumably dictate whether or not the President can/should attend.  This president, however, is seen by many on the right as extremely divisive and regardless of the circumstances it is unfortunate he will not be attending, just to avoid the inevitable arm-waving that partisans on both sides do in these situations.

I believe this is the second time in this thread you've called Obama "divisive" (yes, you used the passive voice, but come on), and of course, this a common criticism on the right.  A serious question: how exactly is Obama divisive in some way that previous Republican presidents were not?  I see a president who has basically kept to his campaign promises (or even moved more towards the center since then).  Of course the other party disagrees with what he's done.  How is essentially being a moderate Democrat divisive?

I can think of loads of things that Bush the 2nd did that were just as "divisive" in terms of generating animosity by Democrats and the public at large.  Bush was criticized for a lot of his actions, but I don't recall any common refrains of him being too divisive.

Is divisive just a shorthand for "being a democrat"?  Did republicans really think that Obama was going to enact policies that they like?  Other than basically governing as a republican, what could Obama have done to not be called divisive in the current political climate?  And doesn't some of the fault for that perceived divisiveness rest on the Republicans who have steadfastly refused to compromise or negotiate except under a deadline?  I fully expect Obama to be called divisive just for nominating a Supreme Court justice, even if it's a moderate.

[burger]

Indeed, for each of the listed funerals, there are specific circumstances that presumably dictate whether or not the President can/should attend.  This president, however, is seen by many on the right as extremely divisive and regardless of the circumstances it is unfortunate he will not be attending, just to avoid the inevitable arm-waving that partisans on both sides do in these situations.

I believe this is the second time in this thread you've called Obama "divisive" (yes, you used the passive voice, but come on), and of course, this a common criticism on the right.  A serious question: how exactly is Obama divisive in some way that previous Republican presidents were not?  I see a president who has basically kept to his campaign promises (or even moved more towards the center since then).  Of course the other party disagrees with what he's done.  How is essentially being a moderate Democrat divisive?

I can think of loads of things that Bush the 2nd did that were just as "divisive" in terms of generating animosity by Democrats and the public at large.  Bush was criticized for a lot of his actions, but I don't recall any common refrains of him being too divisive.

Is divisive just a shorthand for "being a democrat"?  Did republicans really think that Obama was going to enact policies that they like?  Other than basically governing as a republican, what could Obama have done to not be called divisive in the current political climate?  And doesn't some of the fault for that perceived divisiveness rest on the Republicans who have steadfastly refused to compromise or negotiate except under a deadline?  I fully expect Obama to be called divisive just for nominating a Supreme Court justice, even if it's a moderate.

[81alum]

[quote author=81alum link=topic=14611.msg156745#msg156745 date=1455762610]
The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.   

Scholars who have researched this issue have argued quite persuasively that there is in fact a textual basis for judicial review in the language of the Constitution. They have argued that when the Constitution was written and ratified, the widely understood public meaning of "the judicial power" included judicial review, and the Constitution was invariably understood to give the federal courts the power of judicial review. So, an originalist who wants to apply the original public meaning of the text should read the grant of the "judicial power" in Article III to encompass judicial review.

Professor Randy Barnett of Georgetown, who is himself an originalist, put it this way:

"[T]he overwhelming majority of courts and scholars are correct, I submit, to accept the legitimacy of judicial review. Judicial nullification of unconstitutional laws is not only consistent with the frame provided by original meaning, it is expressly authorized by the text and it therefore entirely justified wholly on originalist grounds. . . . [T]he original meaning of the “judicial power” found in Article III was more specific than what today is its plain meaning and . . . at the founding, it included a power of judicial nullification. . . .

"Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation than even many constitutional scholars who acknowledge its pedigree realize. . . .

"The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the “judicial power” included the power to nullify unconstitutional laws."
[/quote]
I guess it depends on what sort of "strict constructionist" one means, and perhaps that is why friends of Scalia like Barnett and John Yoo prefer the term "originalist."  I think the argument that "the judicial power" is a textual basis for judicial review stretches the concept of a text a very long ways.  Consider what is really meant by this argument.  The phrase "the judicial power" only implies judicial review when interpreted in light of deep understandings of precedents, history, and culture that are not anywhere explicit in the Constitution itself.  One has to get inside the heads of the entire electorate that ratified the document to know what the document means, since its meaning is NOT explicit.  Again, that is fine with me as a justification for judicial review--but I think it rather takes the luster off of the "strict" aspects of strict constructionism.

In any case, this has been a fun debate!

[81alum]

[quote author=81alum link=topic=14611.msg156745#msg156745 date=1455762610]
The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.   

Scholars who have researched this issue have argued quite persuasively that there is in fact a textual basis for judicial review in the language of the Constitution. They have argued that when the Constitution was written and ratified, the widely understood public meaning of "the judicial power" included judicial review, and the Constitution was invariably understood to give the federal courts the power of judicial review. So, an originalist who wants to apply the original public meaning of the text should read the grant of the "judicial power" in Article III to encompass judicial review.

Professor Randy Barnett of Georgetown, who is himself an originalist, put it this way:

"[T]he overwhelming majority of courts and scholars are correct, I submit, to accept the legitimacy of judicial review. Judicial nullification of unconstitutional laws is not only consistent with the frame provided by original meaning, it is expressly authorized by the text and it therefore entirely justified wholly on originalist grounds. . . . [T]he original meaning of the “judicial power” found in Article III was more specific than what today is its plain meaning and . . . at the founding, it included a power of judicial nullification. . . .

"Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation than even many constitutional scholars who acknowledge its pedigree realize. . . .

"The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the “judicial power” included the power to nullify unconstitutional laws."
[/quote]
I guess it depends on what sort of "strict constructionist" one means, and perhaps that is why friends of Scalia like Barnett and John Yoo prefer the term "originalist."  I think the argument that "the judicial power" is a textual basis for judicial review stretches the concept of a text a very long ways.  Consider what is really meant by this argument.  The phrase "the judicial power" only implies judicial review when interpreted in light of deep understandings of precedents, history, and culture that are not anywhere explicit in the Constitution itself.  One has to get inside the heads of the entire electorate that ratified the document to know what the document means, since its meaning is NOT explicit.  Again, that is fine with me as a justification for judicial review--but I think it rather takes the luster off of the "strict" aspects of strict constructionism.

In any case, this has been a fun debate!

[CornFed]

[quote author=CornFed link=topic=14611.msg156759#msg156759 date=1455819786]
Indeed, for each of the listed funerals, there are specific circumstances that presumably dictate whether or not the President can/should attend.  This president, however, is seen by many on the right as extremely divisive and regardless of the circumstances it is unfortunate he will not be attending, just to avoid the inevitable arm-waving that partisans on both sides do in these situations.

I believe this is the second time in this thread you've called Obama "divisive" (yes, you used the passive voice, but come on), and of course, this a common criticism on the right.  A serious question: how exactly is Obama divisive in some way that previous Republican presidents were not?  I see a president who has basically kept to his campaign promises (or even moved more towards the center since then).  Of course the other party disagrees with what he's done.  How is essentially being a moderate Democrat divisive?

I can think of loads of things that Bush the 2nd did that were just as "divisive" in terms of generating animosity by Democrats and the public at large.  Bush was criticized for a lot of his actions, but I don't recall any common refrains of him being too divisive.

Is divisive just a shorthand for "being a democrat"?  Did republicans really think that Obama was going to enact policies that they like?  Other than basically governing as a republican, what could Obama have done to not be called divisive in the current political climate?  And doesn't some of the fault for that perceived divisiveness rest on the Republicans who have steadfastly refused to compromise or negotiate except under a deadline?  I fully expect Obama to be called divisive just for nominating a Supreme Court justice, even if it's a moderate.
[/quote]

To quote Pete Carroll (which I guess puts you in the role of Jim Harbaugh), "What's your problem?".  Seems to me here, burger, that you are spoiling for conflict.  I'm not going to search for my previous use of "divisive", but apparently I don't have to since you're keeping count.  But I can say in utter honesty that passive voice was accurate in this case.  I could not give a rat's ass whether or not President Obama attends Scalia's ceremony.

But I don't want to spoil your fun.  I will tell you that I personally feel that he's been a divider, not a uniter, to paraphrase GWB.  Otherwise, I try to always remember: what other people think of me is none of my business.

[CornFed]

[quote author=CornFed link=topic=14611.msg156759#msg156759 date=1455819786]
Indeed, for each of the listed funerals, there are specific circumstances that presumably dictate whether or not the President can/should attend.  This president, however, is seen by many on the right as extremely divisive and regardless of the circumstances it is unfortunate he will not be attending, just to avoid the inevitable arm-waving that partisans on both sides do in these situations.

I believe this is the second time in this thread you've called Obama "divisive" (yes, you used the passive voice, but come on), and of course, this a common criticism on the right.  A serious question: how exactly is Obama divisive in some way that previous Republican presidents were not?  I see a president who has basically kept to his campaign promises (or even moved more towards the center since then).  Of course the other party disagrees with what he's done.  How is essentially being a moderate Democrat divisive?

I can think of loads of things that Bush the 2nd did that were just as "divisive" in terms of generating animosity by Democrats and the public at large.  Bush was criticized for a lot of his actions, but I don't recall any common refrains of him being too divisive.

Is divisive just a shorthand for "being a democrat"?  Did republicans really think that Obama was going to enact policies that they like?  Other than basically governing as a republican, what could Obama have done to not be called divisive in the current political climate?  And doesn't some of the fault for that perceived divisiveness rest on the Republicans who have steadfastly refused to compromise or negotiate except under a deadline?  I fully expect Obama to be called divisive just for nominating a Supreme Court justice, even if it's a moderate.
[/quote]

To quote Pete Carroll (which I guess puts you in the role of Jim Harbaugh), "What's your problem?".  Seems to me here, burger, that you are spoiling for conflict.  I'm not going to search for my previous use of "divisive", but apparently I don't have to since you're keeping count.  But I can say in utter honesty that passive voice was accurate in this case.  I could not give a rat's ass whether or not President Obama attends Scalia's ceremony.

But I don't want to spoil your fun.  I will tell you that I personally feel that he's been a divider, not a uniter, to paraphrase GWB.  Otherwise, I try to always remember: what other people think of me is none of my business.

[stupac2]

I will tell you that I personally feel that he's been a divider, not a uniter

Why? What has he done, outside of being a Democrat, that's more divisive than what W did?

[stupac2]

I will tell you that I personally feel that he's been a divider, not a uniter

Why? What has he done, outside of being a Democrat, that's more divisive than what W did?

[ThePassionOfTheChryst]

[quote author=CornFed link=topic=14611.msg156799#msg156799 date=1455850010]I will tell you that I personally feel that he's been a divider, not a uniter

Why? What has he done, outside of being a Democrat, that's more divisive than what W did?
[/quote]

Not to butt in, but I couldn't seem to find where CornFed compared Obama's divisiveness to that of W.

[ThePassionOfTheChryst]

[quote author=CornFed link=topic=14611.msg156799#msg156799 date=1455850010]I will tell you that I personally feel that he's been a divider, not a uniter

Why? What has he done, outside of being a Democrat, that's more divisive than what W did?
[/quote]

Not to butt in, but I couldn't seem to find where CornFed compared Obama's divisiveness to that of W.

[Stymie]

For those on this board who dream of a parliamentary "democracy" for the USA, look at the UK.  I have lived here for 25 or my past 27 years.  It is less a democracy than a term limited dictatorship, with few checks and balances and with a parliament which speaks with vitriol rather than reason.  And don't get me started on the House of "Lords" ........

[Stymie]

For those on this board who dream of a parliamentary "democracy" for the USA, look at the UK.  I have lived here for 25 or my past 27 years.  It is less a democracy than a term limited dictatorship, with few checks and balances and with a parliament which speaks with vitriol rather than reason.  And don't get me started on the House of "Lords" ........

[socalstanfan1]

For those on this board who dream of a parliamentary "democracy" for the USA, look at the UK.  I have lived here for 25 or my past 27 years.  It is less a democracy than a term limited dictatorship, with few checks and balances and with a parliament which speaks with vitriol rather than reason.  And don't get me started on the House of "Lords" ........

I was just thinking about the musings on this thread regarding a Parliamentary system.  I don't have the first-hand experience of Stymie, so I won't bother casting an opinion about how it works, but it does seem to be indulging in fantasy to consider this as an alternative to the US system, at least for the foreseeable future.  Basically scrap the Constitution (held by many people on both sides of the proverbial aisle as a nearly sacred document, regardless of whether we see it as a text to go back to in a fundamentalist fashion, or a "living" document, developing with society) and create a system that would be clearly derivative of someone else's government?  In a country that still prides itself on being at the cutting edge of government innovation so recently (at least historically speaking). Not..gonna...happen.

Furthermore, despite all the legitimate concern about government deadlock, I'm don't feel so totally helpless about US politics.  Given time, we might see gradual improvements and tweaking of the system.  Things have always been contentious in Congress, but not always this bad.  Much as the founders intended, the current divisions in Congress seem to reflect, to some degree, the divisions within the nation itself.  Certainly this is the case with the way the Senate reviews SC nominees.  But is that all bad?  The biggest issues, it seems to me, are the abuse of the filibuster in the Senate and the use of the so-called "Hastert Rule" in the House, whereby a speaker will not allow an bill to go forward unless the majority of the majority party agrees to it.  Both of these things seem anti-democratic, (Particularly in the way the filibuster is being used in the Senate in recent years), and the Hastert Rule in particular is more about maintaining party discipline, rather than actually getting anything done. But they are not really about legislating. 

Allow nominees and bills to move forward to be voted upon by all members in both chambers of Congress.  If a coalition of members of both parties agree to a piece of legislation, or accept the nominee to the SC, let it be so.  I could see, over the next few years, modifying of some of the parliamentary rules and behaviors of parties to unblock some of the gridlock in Congress, and with that the system would not seem so broken...merely unwieldy and slow moving, kind of as was expected all along.

On the other hand, if the majority of Americans were to pick a buffoon like Trump as their next President, replacing reason with Pro-Wrestling Style hysteria and PT Barnum-ish showmanship, I would truly lose hope...

[socalstanfan1]

For those on this board who dream of a parliamentary "democracy" for the USA, look at the UK.  I have lived here for 25 or my past 27 years.  It is less a democracy than a term limited dictatorship, with few checks and balances and with a parliament which speaks with vitriol rather than reason.  And don't get me started on the House of "Lords" ........

I was just thinking about the musings on this thread regarding a Parliamentary system.  I don't have the first-hand experience of Stymie, so I won't bother casting an opinion about how it works, but it does seem to be indulging in fantasy to consider this as an alternative to the US system, at least for the foreseeable future.  Basically scrap the Constitution (held by many people on both sides of the proverbial aisle as a nearly sacred document, regardless of whether we see it as a text to go back to in a fundamentalist fashion, or a "living" document, developing with society) and create a system that would be clearly derivative of someone else's government?  In a country that still prides itself on being at the cutting edge of government innovation so recently (at least historically speaking). Not..gonna...happen.

Furthermore, despite all the legitimate concern about government deadlock, I'm don't feel so totally helpless about US politics.  Given time, we might see gradual improvements and tweaking of the system.  Things have always been contentious in Congress, but not always this bad.  Much as the founders intended, the current divisions in Congress seem to reflect, to some degree, the divisions within the nation itself.  Certainly this is the case with the way the Senate reviews SC nominees.  But is that all bad?  The biggest issues, it seems to me, are the abuse of the filibuster in the Senate and the use of the so-called "Hastert Rule" in the House, whereby a speaker will not allow an bill to go forward unless the majority of the majority party agrees to it.  Both of these things seem anti-democratic, (Particularly in the way the filibuster is being used in the Senate in recent years), and the Hastert Rule in particular is more about maintaining party discipline, rather than actually getting anything done. But they are not really about legislating. 

Allow nominees and bills to move forward to be voted upon by all members in both chambers of Congress.  If a coalition of members of both parties agree to a piece of legislation, or accept the nominee to the SC, let it be so.  I could see, over the next few years, modifying of some of the parliamentary rules and behaviors of parties to unblock some of the gridlock in Congress, and with that the system would not seem so broken...merely unwieldy and slow moving, kind of as was expected all along.

On the other hand, if the majority of Americans were to pick a buffoon like Trump as their next President, replacing reason with Pro-Wrestling Style hysteria and PT Barnum-ish showmanship, I would truly lose hope...

[terry]

The phrase "the judicial power" only implies judicial review when interpreted in light of deep understandings of precedents, history, and culture that are not anywhere explicit in the Constitution itself.  One has to get inside the heads of the entire electorate that ratified the document to know what the document means, since its meaning is NOT explicit.  Again, that is fine with me as a justification for judicial review--but I think it rather takes the luster off of the "strict" aspects of strict constructionism.

In any case, this has been a fun debate!

The idea that we need to "get inside the heads" of the 18th century Framers to understand what they meant in the Constitution is part and parcel of Scalia's originalism. Scalia used to look at history, precedents, and culture to determine the 18th century meaning of the words used in the Constitution. Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and bear arms.

Prof. Barnett's originalist analysis of judicial review follows the same approach. He looks at 18th century sources to determine what the words in the Constitution meant back in the 18th century. His research shows that the 18th century understanding of the term "judicial power" included judicial review. Other scholars have done related work. I think this analysis of historical and cultural sources is well within the originalism espoused by Scalia.

Yes, it has been a fun discussion.

[terry]

The phrase "the judicial power" only implies judicial review when interpreted in light of deep understandings of precedents, history, and culture that are not anywhere explicit in the Constitution itself.  One has to get inside the heads of the entire electorate that ratified the document to know what the document means, since its meaning is NOT explicit.  Again, that is fine with me as a justification for judicial review--but I think it rather takes the luster off of the "strict" aspects of strict constructionism.

In any case, this has been a fun debate!

The idea that we need to "get inside the heads" of the 18th century Framers to understand what they meant in the Constitution is part and parcel of Scalia's originalism. Scalia used to look at history, precedents, and culture to determine the 18th century meaning of the words used in the Constitution. Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and bear arms.

Prof. Barnett's originalist analysis of judicial review follows the same approach. He looks at 18th century sources to determine what the words in the Constitution meant back in the 18th century. His research shows that the 18th century understanding of the term "judicial power" included judicial review. Other scholars have done related work. I think this analysis of historical and cultural sources is well within the originalism espoused by Scalia.

Yes, it has been a fun discussion.

[deepred]

I believe this is the second time in this thread you've called Obama "divisive" (yes, you used the passive voice, but come on), and of course, this a common criticism on the right.  A serious question: how exactly is Obama divisive in some way that previous Republican presidents were not?  I see a president who has basically kept to his campaign promises (or even moved more towards the center since then).  Of course the other party disagrees with what he's done.  How is essentially being a moderate Democrat divisive?

I can think of loads of things that Bush the 2nd did that were just as "divisive" in terms of generating animosity by Democrats and the public at large.  Bush was criticized for a lot of his actions, but I don't recall any common refrains of him being too divisive.

Is divisive just a shorthand for "being a democrat"?  Did republicans really think that Obama was going to enact policies that they like?  Other than basically governing as a republican, what could Obama have done to not be called divisive in the current political climate?  And doesn't some of the fault for that perceived divisiveness rest on the Republicans who have steadfastly refused to compromise or negotiate except under a deadline?  I fully expect Obama to be called divisive just for nominating a Supreme Court justice, even if it's a moderate.

A quantitative approach: Gallup's presidential polarization scores

Based on the numbers, one would be justified in calling both Obama and Bush divisive relative to everyone else. Obama seems to be edging Bush in this category based on trend, but that could just be a function of recency, as the distance between the two parties grows.

[deepred]

I believe this is the second time in this thread you've called Obama "divisive" (yes, you used the passive voice, but come on), and of course, this a common criticism on the right.  A serious question: how exactly is Obama divisive in some way that previous Republican presidents were not?  I see a president who has basically kept to his campaign promises (or even moved more towards the center since then).  Of course the other party disagrees with what he's done.  How is essentially being a moderate Democrat divisive?

I can think of loads of things that Bush the 2nd did that were just as "divisive" in terms of generating animosity by Democrats and the public at large.  Bush was criticized for a lot of his actions, but I don't recall any common refrains of him being too divisive.

Is divisive just a shorthand for "being a democrat"?  Did republicans really think that Obama was going to enact policies that they like?  Other than basically governing as a republican, what could Obama have done to not be called divisive in the current political climate?  And doesn't some of the fault for that perceived divisiveness rest on the Republicans who have steadfastly refused to compromise or negotiate except under a deadline?  I fully expect Obama to be called divisive just for nominating a Supreme Court justice, even if it's a moderate.

A quantitative approach: Gallup's presidential polarization scores

Based on the numbers, one would be justified in calling both Obama and Bush divisive relative to everyone else. Obama seems to be edging Bush in this category based on trend, but that could just be a function of recency, as the distance between the two parties grows.

[81alum]

Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and 59er arms.

Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient.

I think his parsing of the two clauses of the amendment is quite contorted, and of course the S.C. agreed with me and not Justice Scalia (that the first half of the amendment limited the second half of the amendment) for the better part of a century.  But supposed I accept for the sake of argument that Scalia's originalism does prove that the 2nd amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") does not limit the scope of the amendment as the Supreme Court previously thought, what then?  If we are solely concerned with what was truly the original meaning, wouldn't the 2nd amendment only apply to the kinds of arms that existed on the date that the 2nd amendment was passed?  Is this the right to carry flintlocks?

Scalia directly responds to this argument, but notice what argument he makes:

  Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

His response is not an argument at all.  Scalia says only that "we do not interpret constitutional rights that way."  Of course we don't.  And that is exactly why originalism doesn't work.  He just as much as said that "we do not interpret constitutional rights using originalism."  Except he does.  Except for when he doesn't.  He seems to be all in favor of a living breathing constitution when it helps him make the case that modern weapons are covered by the 2nd amendment, but he is an originalist when he is seeking grounds for ignoring the prefatory clause.

[81alum]

Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and 59er arms.

Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient.

I think his parsing of the two clauses of the amendment is quite contorted, and of course the S.C. agreed with me and not Justice Scalia (that the first half of the amendment limited the second half of the amendment) for the better part of a century.  But supposed I accept for the sake of argument that Scalia's originalism does prove that the 2nd amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") does not limit the scope of the amendment as the Supreme Court previously thought, what then?  If we are solely concerned with what was truly the original meaning, wouldn't the 2nd amendment only apply to the kinds of arms that existed on the date that the 2nd amendment was passed?  Is this the right to carry flintlocks?

Scalia directly responds to this argument, but notice what argument he makes:

  Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

His response is not an argument at all.  Scalia says only that "we do not interpret constitutional rights that way."  Of course we don't.  And that is exactly why originalism doesn't work.  He just as much as said that "we do not interpret constitutional rights using originalism."  Except he does.  Except for when he doesn't.  He seems to be all in favor of a living breathing constitution when it helps him make the case that modern weapons are covered by the 2nd amendment, but he is an originalist when he is seeking grounds for ignoring the prefatory clause.

[ThePassionOfTheChryst]

Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient.

I think his parsing of the two clauses of the amendment is quite contorted, and of course the S.C. agreed with me and not Justice Scalia (that the first half of the amendment limited the second half of the amendment) for the better part of a century.  But supposed I accept for the sake of argument that Scalia's originalism does prove that the 2nd amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") does not limit the scope of the amendment as the Supreme Court previously thought, what then?  If we are solely concerned with what was truly the original meaning, wouldn't the 2nd amendment only apply to the kinds of arms that existed on the date that the 2nd amendment was passed?  Is this the right to carry flintlocks?

I've always understood the first portion of the amendment as providing rationale for the second portion, rather than constraints.  But I suppose that is neither here nor there.

[ThePassionOfTheChryst]

Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient.

I think his parsing of the two clauses of the amendment is quite contorted, and of course the S.C. agreed with me and not Justice Scalia (that the first half of the amendment limited the second half of the amendment) for the better part of a century.  But supposed I accept for the sake of argument that Scalia's originalism does prove that the 2nd amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") does not limit the scope of the amendment as the Supreme Court previously thought, what then?  If we are solely concerned with what was truly the original meaning, wouldn't the 2nd amendment only apply to the kinds of arms that existed on the date that the 2nd amendment was passed?  Is this the right to carry flintlocks?

I've always understood the first portion of the amendment as providing rationale for the second portion, rather than constraints.  But I suppose that is neither here nor there.