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Jul 23 2013

Scalia’s Simplistic and Offensive Bluster

Justice Scalia gave a talk to the Utah State Bar Association this past weekend and delivered his usual overly simplistic version of how constitutional interpretation does and should operate. And just for added offense, he added in a Nazi analogy for good measure.

Speaking to a gathering of the Utah State Bar Association at the Westin Resort in Snowmass Village, the longest-serving justice on the nation’s highest court lamented a trend among federal judges, including his colleagues on the Supreme Court, to read and interpret the U.S. Constitution as a “living document” that changes over time.

Scalia described himself as an “originalist” in his reading of legal texts.

“I believe that texts should be read to mean what they were understood to mean when they were adopted,” he explained…

When judges begin to reinterpret founding documents like the Constitution and make value-laden decisions about individual rights and liberties, Scalia said, they distort the workings of a democratic society. The title of Scalia’s talk, “Mullahs of the West: Judges as Moral Arbiters,” underscores his point that societal decisions about morality and human rights — most of which have no right or wrong answers — should be made in the political arena and not by the courts.

“Who in a democratic society should have the power to determine the government’s view of what natural law is?” the justice asked. “In an open, democratic society, the people can debate these issues.”…

Instead, he said, society at large should set its own moral standards. For example, when women’s suffrage became an issue in the late 1800s and early 1900s, the Supreme Court wasn’t asked to interpret the Constitution. Congress responded to public pressure by giving women the right to vote.

“We understood in 1920 that the Equal Protection Clause meant today what it meant when it was adopted,” he said. “We did what the Constitution required — we adopted the 19th Amendment.”

I think the thing that bothers me the most about this is how he casts those who oppose him as unprincipled jurists who just invent whatever interpretive theory they need in each case to make sure to get the result they want, while casting himself as one who acts purely and objectively on the basis of the easily-determined original meaning of each provision of the constitution. But this is all nonsense, hypocrisy and posturing.

If he really believes that it’s only the original meaning that matters, why did he rule in Raich that the federal government could overrule California’s medical marijuana laws? Surely there wasn’t a single founding father who wrote the interstate commerce clause who could possibly have believed that it could be used to justify federal oversight of actions that are neither interstate nor commerce. Original intent did not matter to him in the least; he got the result he wanted by ignoring originalism.

If he really believes that only democratic processes should determine what we do and what the government is allowed to do, why did he vote to overturn the Affordable Care Act? Or the Voting Rights Act, which passed Congress nearly unanimously when it was reauthorized in 2006? Democracy only matters to him when it matters to him, which is to say when it leads to the result he likes. He is every bit as guilty of constructing inconsistent interpretations to get the outcome he likes as those he accuses of doing the same thing.

The only thing worse than a scold is one who is guilty of the same transgressions about which he is scolding others.

22 comments

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  1. 1
    John Pieret

    Why did he interpret the Second Amendment to include modern revolvers and automatic weapons when the Founders were only contemplating flintlocks (and muzzle loading canons)?

  2. 2
    Randomfactor

    I guess on the plus side, limiting the Second Amendment to muskets would cut down on the murder rate. Shame about “freedom of the press” no longer applying to radio and tv stations, cable networks, teh interweb, etc.

  3. 3
    rickdesper

    “Mullahs” eh?

    How quaint. But really, how embarrassing.

  4. 4
    Ace of Sevens

    They couldn’t use the second amendment to rule that women had the right to vote because section 2 explicitly says that part only applies to men twenty-one and up. The authors wrote in disclaimers about hwo they didn’t want it interpreted.

  5. 5
    Donnie

    Wasn’t there something about 3/5th in the Constitution? The joke always was that conversatives wanted to take us back to the ’60…..Thankfully, Scalia has provided us the century indicator.

  6. 6
    Ryan Jean

    How to shut up Scalia in one line:

    “Justice Scalia, according to your explanation of Constitutional Originalism, Loving v. Virginia must have been wrongly decided. This thinking is evident in your dissent in Lawrence v. Texas, which used, at least as far as it would apply to the 14th Amendment, identical arguments. Yet you have agreed with the court’s decision in Loving. Please explain the opportunistic hypocrisy.”

  7. 7
    mithrandir

    What I haven’t figured out, in multiple threads about these remarks in different places, is what the German judiciary supposedly had to do with the rise of Nazism in the first place. What happened in Germany in the 30′s that the German judiciary could’ve ruled against but didn’t, and what legal argument could they have used to rule against whateveritwas?

    In short, what the hell does Scalia even think he’s talking about? Or is there nothing more to it than “Nazis bad, judicial activism bad, therefore judicial activism = Nazis”? (I’m well aware that that’s what it actually is, I’m just wondering if there’s even a thin reed of substance on which he’s balancing it.)

  8. 8
    Chiroptera

    “I believe that texts should be read to mean what they were understood to mean when they were adopted,” he explained…

    “…And they were understood to mean that only conservative laws are valid.”

  9. 9
    garnetstar

    If he really believes that only democratic processes should determine what we do and what the government is allowed to do, why doesn’t he quit his job? Why have a supreme court at all?

    And, what the hell is “natural law”, and why should we give a damn about it? Why should it be the law of the land?

    I’ve never seen a justice who so openly, nakedly, competely, ignores his oath of office. His every word, thought, and action are to advance his own morals into law. Has he ever once considered the constitution instead of his own agenda?

  10. 10
    jeevmon

    I’m fairly sure the Fourteenth Amendment was not understood to prohibit states from running” separate but equal” schools. Scalia has said that he agrees with the decision in Brown v. Board, but it’s hard to square that with his professed dedication to originalism. More likely, he thinks the Plessy majority got it right, but realizes he can’t say that out loud.

  11. 11
    John Hinkle

    Why do we need a Supreme Court then? Whatever Congress says goes.

  12. 12
    John Hinkle

    Oops, trumped by garnetstar.

  13. 13
    Chiroptera

    mithrandir, #7: What I haven’t figured out, in multiple threads about these remarks in different places, is what the German judiciary supposedly had to do with the rise of Nazism in the first place.

    Well, the Nazis were well known for same sex marriage and forcing local jurisdictions to allow minorities to vote. Scalia is right to try to protect us from that scourge!

  14. 14
    marcus

    I live here in Snowmass, we’re still trying to air the place out. The stench of self-serving demagoguery is hard to get rid of!

  15. 15
    Chiroptera

    [Scalia] lamented a trend among federal judges…to read and interpret the U.S. Constitution as a “living document” that changes over time.

    Which seems to be in contrast with contemporary conservative jurists who want to treat the Constitution as if it were a dead letter.

  16. 16
    D. C. Sessions

    Shame about “freedom of the press” no longer applying to radio and tv stations, cable networks, teh interweb, etc.

    Or for that matter to printed matter not produced by movable block type.

    Then there’s that bit about “limited times” and the Founders’ idea that it meant less than the lifetime of the author.

  17. 17
    cptdoom

    “I believe that texts should be read to mean what they were understood to mean when they were adopted…

    And he said this in front of an audience in Utah, which I’m presuming had more than a handful of Mormons in attendance. Is Scalia arguing the founding fathers were prescient and knew that Joseph Smith would create a whole spanking new religion in the 1830s, or is he arguing that most of his audience does not enjoy First Amendment protections?

  18. 18
    Modusoperandi

    He’s got it all.
    Look, you have to admire both his tenacious grip on objective Originalism and his relentless pragmatism on quickly abandoning it when it leads to conclusions he doesn’t like.

  19. 19
    tomh

    @ #18

    Well, Scalia is on record as claiming that the Establishment Clause doesn’t apply to polytheists or atheists, so he may well throw Mormons in the mix also.

    From his dissent in McCreary County v. ACLU

    “it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

  20. 20
    Ace of Sevens

    If the establishment clause doesn’t apply to atheists, that mean it’s OK to establish atheism, right?

  21. 21
    democommie

    Scatlia’s pretty much proven, to anyone paying attention, that he doesn’t give a fuck about anything but his own petty agenda, Just another fucking ReiKKKwing hack.

  22. 22
    CaitieCat, in no way a robot nosireebot

    We did what the Constitution required — we adopted the 19th Amendment.

    Wait, wait, wait. If the US Constitution were perfect as written, why does he think it’s okay to consider the Amendments? And how can following the exact original intent of a document lead to the requirement to amend it to read differently? I keep hearing that Scalia’s supposed to be intelligent, as well as a fascist ideologue. Is that just basically blowing smoke? Because that does not look like the statement of a rational person.

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