{"id":148092,"date":"2015-06-27T19:55:06","date_gmt":"2015-06-27T19:55:06","guid":{"rendered":"http:\/\/www.merindab.com\/private\/2015\/06\/27\/my-scalia-is-a-bnf-theory-of-jurisprudence\/"},"modified":"2015-06-27T19:55:06","modified_gmt":"2015-06-27T19:55:06","slug":"my-scalia-is-a-bnf-theory-of-jurisprudence","status":"publish","type":"post","link":"https:\/\/www.merindab.com\/private\/2015\/06\/27\/my-scalia-is-a-bnf-theory-of-jurisprudence\/","title":{"rendered":"My Scalia-Is-a-BNF Theory of Jurisprudence"},"content":{"rendered":"

earlgreytea68<\/a>:<\/p>\n

\n

I am no con law scholar, but in reading the Scalia dissents in the Affordable Care Act case and in the gay marriage case, it occurred to me that this is what seemed to be happening: <\/p>\n

Affordable Care Act Case<\/i><\/p>\n

Scalia: The text as written in the statute is what it is. We can never know what the drafters actually intended.
Drafters of the statute: \u2026Yes, we can. In fact, we can tell you\u2013
Scalia: NO. WE CAN NEVER KNOW. WE MUST JUST GO BY WHAT IS WRITTEN THERE. IT IS IMPOSSIBLE TO KNOW ANYONE\u2019S INTENT, EVER.<\/p>\n

Gay Marriage Case<\/i><\/p>\n

Scalia: I know the intents of all men from the eighteenth and early nineteenth centuries who ever had anything to do with jurisprudence and they would hate my fellow justices and also gay marriage and also just marriage in general and if you want to know anything about what these guys were thinking, just ask me.<\/p>\n

So it occurred to me that basically Scalia\u2019s theory of jurisprudence seems to boil down to this: It is impossible to know intent and we must only look strictly to the words as written UNLESS it has to do with someone who Scalia feels he \u201cgets\u201d on some kind of elemental level and then he knows all about intent, no worries, k? Which basically seems to me that Scalia\u2019s just running around writing Founding Fathers fanfiction at this point and pouting a lot when he gets Jossed by, say, the five other Supreme Court justices, or the majority of the American public, or Congress, or whatever. \u201cDudes, did you guys not read my coffeeshop AU? Because pretty sure John Marshall the barista\u2019s not down with that,\u201d is pretty much Scalia\u2019s attitude.<\/p>\n

I\u2019ve never been a huge fan of originalism, and for the first time I\u2019ve connected it in my head to fanfiction: I\u2019m not a huge fan of originalism because I am used to the understanding that a \u201ccanon\u201d text can be interpreted any number of ways, and Scalia\u2019s kind of like the bullying BNF who I\u2019d basically ignore in fandom because he\u2019s clearly crazy. (And originalism always seems just as maddeningly nonsensical as any piece of fandom wank you can come across. Like, copyright\u2019s my field, and when copyright was originally set up in this country, it lasted for 28 years. Now it lasts for life of the author plus seventy years. But I didn\u2019t notice Scalia running around ranting about protecting the intent of the original copyright drafters when the copyright extension was recently challenged.)<\/p>\n

(And do not even ask me to explain Scalia\u2019s outrage over the Supreme Court declaring something unconstitutional, considering that is actually the Supreme Court\u2019s job, as established by Scalia\u2019s problematic fave John Marshall in Marbury v. Madsion in 1803.)<\/p>\n

Anyway, I don\u2019t do a lot of legal posting here but I felt like my Scalia as BNF theory is an important addition to constitutional scholarship and must be shared. We should probably all anticipate a new Scalia!canon!fic wherein Jefferson and Adams hang out post-coitally and exult about the fact that they can\u2019t legally get married because of how much marriage would destroy intimacy and their super-kinky sex life. <\/p>\n

<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

earlgreytea68: I am no con law scholar, but in reading the Scalia dissents in the Affordable Care Act case and in the gay marriage case, it occurred to me that this is what seemed to be happening: Affordable Care Act Case Scalia: The text as written in the statute is what it is. We can … <\/p>\n

Continue reading “My Scalia-Is-a-BNF Theory of Jurisprudence”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/posts\/148092"}],"collection":[{"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/comments?post=148092"}],"version-history":[{"count":0,"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/posts\/148092\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/media?parent=148092"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/categories?post=148092"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.merindab.com\/private\/wp-json\/wp\/v2\/tags?post=148092"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}