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To: Jim 0216

Scalia was conflicted about Wickard....

15 posted on 03/18/2017 2:18:43 PM PDT by Paladin2 (No spellcheck. It's too much work to undo the auto wrong word substitution on mobile devices.)
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To: Paladin2

Wonder where Gorsuch falls ...


17 posted on 03/18/2017 2:31:36 PM PDT by NobleFree ("law is often but the tyrant's will, and always so when it violates the right of an individual")
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To: Paladin2

Interesting graphs. (Don’t know who Merrick B. Garlan is but it would interesting to see Judge Robert Bork’s anticipated place on the graph if he hadn’t been “borked” by Ted Kennedy’s demagoguery and lies. IMO, Bork was capable of having been one of the greatest justices on the Supreme Court.)

Although I usually agreed with Scalia’s decisions, I found myself disagreeing with his reasoning many times as often it seemed he would use something other than the Constitution as the basis for his decisions.

Thomas’ record shows reasoning more often based on the Constitution as originally understood and intended.

IMO, Scalia’s weakness was his rigid adherence to “textualism”. I agreed with his philosophy to the extent that the words and text of the Constitution should always be the starting place. But if there is ambiguity or a good-faith disagreement about the meaning of the word(s) in the context of a given clause, then original understanding of the use of the word(s) should come into play. And after that inquiry, if there is still good-faith reason(s) that the word(s) themselves in the context could be interpreted more than one way, then further inquiry into original intent should come into play.

Scalia rejected those further inquiries out of hand leading to what I believe were often flawed rationale and sometimes flawed decisions as in Gonzales v. Raich. The Commerce Clause (CC) is a good example of the need for good-faith inquiry of original intent which almost certainly was limited to removing hindrances to interstate commerce - nowhere near the sweeping powers the feds have assumed through misinterpretation, misuse, and misapplication of the CC.


20 posted on 03/18/2017 3:04:35 PM PDT by Jim W N
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