Kudos to Ms. Talbot's excellent article in The New Yorker (March 28th) concerning the legal philosophy supposedly underpinning Justice Antonin Scalia's decisions. I would have found it laughable - if it weren't for the fact that this man is a justice on the highest court in the land - when I read Scalia describe himself as an originalist. Not only is the concept and practice of an originalist untenable, but it appears that Scalia is willfully ignorant concerning the reasoning and philosophical concepts that brought about the formation of the Constitution and especially the Bill of Rights. He might specifically want to re-examine the impetus behind the Bill of Rights and especially the arguments for the Ninth and Tenth Amendment.
One doesn't have to subscribe to the straightjacket of originalism or original intent to avoid the morass of postmodernist relativism. Someone should have thrust Professor John Wild's book, Plato's Modern Enemies and the Theory of Natural Law into his stubby little hands while he was at college. Maybe then he'd wouldn't have developed a jurisprudence so lacking in a rational foundation that the only way he can defend it is by permanently sneering at those that point out its single molecule veneer of reason.
Article comments
1 - Dave Nalle
Perhaps explaining what an 'originalist' is would have made your mini-rant comprehensible to the general public.
Dave
2 - Dave Nalle
I went and found the article which you're reacting to. They link you didn't bother to provide is at The New Yorker Online and only in the online version.
It actually paints a very positive, even flattering picture of Scalia and makes pretty clear that an 'originalist' is what we used to call a 'strict constructionalist', someone who believes that if it's in the Constitution then it should be done and if it's not in there specifically then Congress should pass a law for it or the states should handle it. Not an unreasonable position.
Your negative conclusions above have absolutely nothing to do with the article, and really couldn't be derived from what is said in the article. As your opinions they have some validity as opinions, but I see no indication that they apply to the reality of how Scalia functions in the court.
Dave
3 - Al Barger
Yes Dave, but Alethinos rants in a very sincere manner.
4 - Dave Nalle
As do we all, Al. It's not a good rant if it's not sincere.
Dave
5 - alethinos59
Dave you might want to read the article again... Talbot does a wonderful job of painting a picture of Scalia but it isn't by any means flattering.
Scalia’s belief that one should read the Constitution and especially the Bill of Rights in a static form " attempting to ignore 240 years of history is to ignore the very reasons why the NINTH and TENTH Amendments were written.
Too often the Court is forced to intervene because state legislatures enact laws that are promoted by either special interests or radical elements of either party. The people have little recourse to change these laws in a timely fashion since " esp., in the case of special interests the amount of money thrown against citizens attempting to overturn the law through the legislative process is all but impossible.
Scalia’s originalist claptrap is wonderful for arch-conservatives. It’s as out of touch with reality as a lot of the decisions " on the opposite end of the spectrum " that come from the Ninth Circuit Court of Appeals which seems to be made up of the politically correct ubermensch.
Despite your feeling on Roe v. Wade Scalia would love to not only roll that back but Griswold v. Connecticut too. Let us go back to the time when a state legislature could tell us what can and cannot happen in the privacy of our bedrooms.
Of course Dave if you really do want Big Brother in your bedroom… Well, that’s your right… Or is it?
6 - Dave Nalle
>>Dave you might want to read the article again... Talbot does a wonderful job of painting a picture of Scalia but it isn't by any means flattering. <<
Flattering is in the eye of the beholder. To me a strict interpretation of the Constitution sounds pretty damned good for a change, especially as just one element of a well-rounded court.
Dave
7 - alethinos59
A strict interpretation of the Constitution leads us to places very much like a literalist reading of the Holy Bible - an absurd place. The Founding Fathers knew that the Constitution and the Bill of Rights could not be a static thing. That’s why they made provisions for additional amendments " albeit tough provisions. That’s why there is the Ninth and Tenth Amendments.
I will grant you that a Court that sticks its nose in every little nook and cranny is a pain. As much a pain that turns its back on the citizenry as legislatures and Congress " far too often under the sway of special interests establish laws that become an increasing burden on the average American.
Take the Senate’s messing with the bankruptcy laws. They are doing this, supposedly because of all the deadbeats out there that are abusing the current system.
However, in study after study " done by groups NOT associated with banks and credit card companies " the statistics show something very different. The majority of bankruptcies occur because of job loss and overwhelming medical bills.
I heard one Senator the other day sneer that “some of these bankruptcies only amount to $10,000!” Well, for someone who hasn’t had to personally buy a gallon of milk in decades makes $160,000 a year as a base salary. I guess he didn’t stop to consider what $10K in debt looks like to someone making $8.50 an hour… It equals nearly 2/3 of your yearly salary.
There is a good reason there are 3 branches to our government Dave… Who do you think puts the CHECK on the legislature and executive branches?
8 - Victor Plenty
Obviously the banks and credit card companies do, Alethinos.
Oh, wait... you asked who puts the check on the legislative and executive branches. My answer only says who writes the checks to our representatives in those branches of the government.
Sorry, my mistake.
9 - Dave Nalle
>>A strict interpretation of the Constitution leads us to places very much like a literalist reading of the Holy Bible - an absurd place. <<
That suggests that the Constitution is an absurd document, which it is not. The Bible is full of contradictions, having been written over a long time by many different people for many different purposes. The Constitution was written as a coherent whole which makes sense and is consistent. The small number of Amendments we have are also clear, consistent and mostly in keeping with the spirit of the main body of the Constitution. Interpreting them strictly does NOT produce an absurd result. It produces CONSISTENT results.
I'm of the belief that the Constitution should be amended as little as possible and that judgements should vary from the stated text of the Constitution as little as reasonably possible. I think that one level of removal is acceptable, but going beyond that is going to far.
>>The Founding Fathers knew that the Constitution and the Bill of Rights could not be a static thing. That’s why they made provisions for additional amendments " albeit tough provisions. That’s why there is the Ninth and Tenth Amendments. <<
And even a few more after that. But the Amendment process is how the Constitution was intended to change - not through a process of subjective reinterpretation.
>>There is a good reason there are 3 branches to our government Dave… Who do you think puts the CHECK on the legislature and executive branches? <<
The courts, of course. But just as the legislative branch shouldn't try to mess in the judicial process - as in the Schiavo case - the bench should not be essentially making law in its decisions. The three branches need to have separate and distinct roles or the system of checks and balances ceases to function. Just as we had an imperial presidency - or an attempt at one - under Nixon, now we have a situation where the courts are trying to dominate the governing process, and that's just as unacceptable.
Dave
10 - alethinos59
Dave you are right - the courts shouldn't "legislate". However the Supreme Court is anything but liberal right now. It is moderately conservative. The point is the "Court" shouldn't be either. The Founding Fathers warned of "stacking" the Court but that advice went as unheeded as did the warning of forming political parties...
Again, I think it goes back to the Ninth and Tenth Amendments. Scalia would love to pretend they don't exist - or assume that the ONLY way that rights can be "discovered" is via the state legislatures. The latter is fine - but what happens when the legislature bends to special interests? According to Scalia the ONLY thing the Court should look at would be the ACTUAL statute. No discussion of the HISTORY of the bill, the HISTORY of how matters have transpired in the STATE.
How utterly bizzare! Where, in ANY aspect of LIFE do we focus WHOLLY on ONE item and exclude the REST of REALITY to make a decision - except perhaps for when we're rushing to the bathroom?
11 - gonzo marx
i gotta sode with Dave as far as liking a "strict interpertation"..
my problem with Scalia, whom our current President cited as his kind of "originalist" is that he has shown time and time again to fail the Objectivity test as far as said Interpertations go..
current case in point is a statement made by him, from the Bench, while hearing Arguments over the Ten Commandments issue a few weeks ago..."our Laws come from God"
that one scared the hell out of me..and still wakes me up screaming in a cold sweat upon occasion (c'mon..some poetic licsence here folks)
he and others of his ilk contend that our Founding Fathers were "religious men" and claim to know their Minds BEYOND what they wrote in the Constitution and Bill of Rights
a wonderful Article on "our godless Constitution" and some of the views of the Founders taken from their Quotes, personal writings and accepted Biographies can be found here...
http://www.thenation.com/doc.mhtml?i=20050221&s=allen
give me an old school "Conservative" like a George Will any day of the week over the Agenda driven, lip service "neo-cons" that are currently in charge of our Government...
at least George and his "type" argue their points from Principles and stand by them, no matter what...those type of Folks can discuss issues in good faith and work together to find solutions..
but i digress...
"checks and balances" is the Keystone to our Republic...without it all kinds of mean, nasty uglies can happen in the blink of an eye..
hence my problem with the current Totalitarian Regime...and especially what it could do to the Court as evidenced in the last two weeks with the whole Schiavo fiasco..
they say one thing, then do another...pay lip service to Principles that many can stand behind..until they get the vote..then they go ahead and change the Rules to suit them...
again..i say the Ends NEVER justify the Means...but the Means are an End unto themselves...
what type of "values" are displayed when you go and change your own Ethics rules to protect your own ass..and on and on...
one good thing...at least the Court stayed away from this latest mess...just wait till the next Supreme has to be chosen..and look at the current examples of those that were rejected for the Federal bench being brought right back up again...be afraid kiddies, be very afraid...those Appointments are for Life..
and befor esomeone starts off on how "unfair" the 10 blocked nominees are...let me remind you that the numer is 10..and that during the last Presidents Administration there were over 240 nominations blackballed..that never got the chance to go to Committee , OR an up and down Vote...
no one changed the Senate Rules then, eh?..it was because of the "Tradition" of ONE dissenter being able to blackball a Nominee without giving any reason..and the Demlicans upholding that senate Tradition, that 240+ were blocked...
when the tables were reversed...the Repubocrats didn't even pretend to show the same courtesy..thus forcing the other side into filibuster as their only means...and STILL only objecting to 10 our of the over 100 nominations made flawlessly(don't have the exact number right now, i believe it exceeds 200 tho..but i will err on the side of caution)
bah...phooey...enough ranting from me
what do you folks think?
Excelsior!
12 - alethinos59
Gonzo thanks for the comments. I think you've got something there...
Back to Dave's point though on the Bible/Constitution. You find ultra-conservatives who insist on inerrancy in both. The Christians of this ilk are blissfully ignorant of the development of both the Bible and their own history from about two minutes after Paul was martyered...
The others feel that as Gonzo points out - they KNOW what was in the minds of men 2 centuries ago... Odd. It seems THEY knew they COULDN'T know what might BE two centuries hence and gave us the Ninth and Tenth Amendments...
13 - Terry
Legislative history does matter in "interpreting" the Constitution or a principle derived from it. If one wants to be a "strict constructionist" what was intended , what problem was addressed what principle is involved is part and parcel of the history.
Without it one simply "reads" into the case in question what ever preconceptions one has acquired from some other source. That it seems to me is the problem with a Scalia. It seems clear from the "history" of the document and its convention that it was intended to be a living document not a static one that somehow speaks for itself without reference to the human beings who are attempting to interpret it or apply it.
We can find first principle here without resorting to static a historical decisions or its alternative a mindless relativism that confuses the fashion of the moment with truth.
14 - Mister Thorne
Here's the link to Talbot's article on Scalia:
Enjoy!