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Subject:  Re: Scalia the Sophist Date:  12/13/2012  1:03 PM
Author:  albaby1 Number:  1844689 of 2204210

Must be time for my afternoon cup of coffee. I didn't understand a word of that.

Must be time for my afternoon cup as well, since I obviously didn't explain it very well!

Let's take a farcical example to illustrate. Suppose a city adopts an ordinance that says that no one is ever allowed to mention the word, "Kardashian" on a public sidewalk. The ordinance is challenged and makes its way to the SCOTUS. At the Court, two separate legal theories are advanced as to why the ordinance is struck down:

1) Saying the word "Kardashian" is speech protected under the First Amendment, and since sidewalks are public fora (even though they are owned by the City), it is a violation of the First Amendment to prohibit that speech.

2) Government is never allowed to tell people what to do.

Note that under either theory, the ordinance is struck down. But there are quite a lot of problems with the latter theory. And indeed, one legitimate criticism of the latter theory is that if it were adopted by the Court, even statutes prohibiting murder would have to be overturned.

Making that argument is not equating the act of saying the word Kardashian with the act of murder - or even suggesting that really have anything in common. If anything, the argument is powerful because the two actions have nothing in common - that's what makes it a critique of the breadth of the second legal theory.

That's the argument that Scalia made in his dissent in Lawrence and has been making ever since - that the majority's expansion of the traditionally deferential "rational relationship" test would, if applied consistently and honestly, undermine the basis for laws on a whole host of wildly disparate matters.

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