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Newsgroups: bit.listserv.politics
Date:         Wed, 27 Jan 1993 10:58:53 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Bray v. Alexandria [Jamie's response]

>From:         JCOCURUL@DREW.BITNET
>
>> The rights at issue are the ones listed in the bill of rights. They
>> are rights people have against the goverment. They say what the
>> government is not allowed to do. The only way OpRes could be
>> conspiring to violate THOSE is by conspiring to make the government
>> do certain things. So Scalia was arguing.
>
>The KK Law [my attempt at correction was misguided] was originally set
>in place to protect blacks' "privileges and immunities" under the 14th
>amendment from private invasion like from say the Klan.  The KKK was
>not trying to get the gov't to do anything, only terrorizing blacks.
>So why does it have to be shown (via Scalia rules) that Operation
>Rescue is conspiring to make the gov't do certain things?  Doesn't
>make any sense.  The 14th amendment has to be the source of the rights
>in question since we are dealing with states (the ninth amendment is a
>less used possible source), so I don't really get what you are saying
>here re the bill of rights.

In reverse order:
The 14th amendment is the source of rights against states, true.
But modern doctrine has it that the 14th taps into the Bill of
Rights, making those rights into rights against states as well
as rights against the federal government.
The reason the original law could be used against the KKK was
that the Klan violated the second provision of the act (see below).

>   The fact that the right of travel (too weak here says Scalia) might
>be protected by the law but abortion can't seems to be the key.  One
>is a positive right, the other negative (keeping the gov't from doing
>something).  Why this matters confuses me, especially with the words
>of the law now in my possession.

I don't agree.
The right of abortion is a right against the government. The government
may not restrict abortion in certain ways. It is not a right against
other citizens.

>>       ``If two or more persons in any State or Territory
>>     conspire or go in disguise on the highway or on the
>>     premises of another, [first] for the purpose of depriving,
>
>Operation Rescue went on clinic property to for the purpose of
>depriving

Scalia says they didn't. He says that the rights which they supposedly
had the purpose of denying were not, nor could they be, rights which
the law protects. The rights that the law protects are rights
against the government, not against organizations like OpRes.

>>     either directly or indirectly, any person or class of
>>     persons of the equal protection of the laws, or of equal
>>     privileges and immunities under the laws; or [second]
>
>directly or indirectly (blocking or terror); any person -- class is
>not needed!  or class - women.  equal protection -- Casey noted
>abortion is protected partly for this.  p & i -- abortion is one
>under the laws of the state and federal courts [consistutional right]

Here I think I agree with you.
Equal Protection, as I understand it (and I think as the Court understands
it) MUST always be by reference to some class. Scalia said that
OpRes did not aim at women as a class, but only at women-seeking-abortions.
He said that while it WOULD be unconstitutional to aim at depriving
women as a class of equal protection of the laws, it is NOT unconstitutional
to aim at so depriving abortion-seekers. His reason was that it is
reasonable, and does not constitute bigotry or invidious discrimination,
to single out abortion-seekers as a target, because an anti-abortion
ideology is very different from an anti-woman ideology.

O'Connor disagreed, wielding some nice phrases.

>>     for the purpose of preventing or hindering the consti-
>>     tuted authorities of any State or Territory from giving
>
>abortion
>
>>     or securing to all persons within such State or Terri-
>>     tory the equal protection of the laws; . . . in any case of
>
>women who want to use the clinics

I definitely agree here. This was clearly the intent (and achievement)
of OpRes.

>Scalia gets annoyed when people don't look at the wording of statues,
>but instead try to use "intent" of the framers etc.  The New Republic
>article could have used this decision to show how he selectively does
>this.

Actually, Scalia thinks that intent is first and best shown
by wording, but if wording is vague other evidence of intent
is needed and reasonable.
You are absolutely right that he doesn't follow his own dictates.

Still haven't got a look at that NR article.

Jamie
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