The Finch Formerly Known As Gold

17 March 2005

Scalia on the New Judiciary

I suppose this will cement my reputation as some sort of right-wing reprobate: I'm about to quote approvingly from a speech by Justice Antonin Scalia.

I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we're picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, "Draw me a moderate contract"? The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one.

Which makes me wonder how much legislation is introduced on the basis of "Wouldn't this be nice?" instead of "Will this pass Constitutional muster?" And I suppose I'm conservative enough to think that if the answer to the latter is No, it doesn't much matter what the answer to the former might be.

(Found by way of Power Line.)

Posted at 7:09 AM to Political Science Fiction


Actually, "Wouldn't this be nice" might indicate relative deliberation. I suspect most legislation is based on "WE HAVE TO DO SOMETHING!!!!!" which would imply lack of deliberation and foresight in haste.

Posted by: Brian J. at 10:14 AM on 17 March 2005

This would certainly explain the USA PATRIOT Act, which apparently no one other than Department of Justice moles did more than scan.

Posted by: CGHill at 10:24 AM on 17 March 2005

I don't know why that should make you right-wing. Too many people confuse conservative with right-wing. They are not necessarily the same. Conservative is not a dirty word to me. I fancy myself as a liberal-conservative (or conservative-liberal), not moderate. I see just as many right wing goons as left wing ones wanting to constantly mold the Constitution to their liking.

What baffles me is why we put up with lawmakers wanting to constantly add or change so many laws every legislative session. For instance, Oklahoma legislators introduced 1089 bills this session; less than half weeded out in committee. Some of those, in my opinion, better than most that were advanced by the "conservative right-wing" legislators in power.

Personally, I feel one of the most important qualifications for a Court justice is conservatism. And that does not mean a right-wing agenda.

Our fore-fathers had the wisdom to develop a constitution that protects us from the tyranny of democracy, whether right-wing or left. That is what needs conserving.

Posted by: MikeH at 11:06 AM on 17 March 2005

And yet despite this plaintive voice, Mr. Justice Scalia continues to vote to uphold laws that codify Christian values simply because they are Christian values, and rail against the Justices who vote against them, because he can't quite understand the "fair meaning when it was developed" of "Congress shall make no law respecting an establishment of religion."

Among other things.

Posted by: Matt at 11:11 AM on 17 March 2005

Correction: I was wrong about the 1089 figure. According to House Media, "House members had filed
1,089 bills and resolutions."

I don't want to mislead folks in thinking that included the Senate too.

Posted by: MikeH at 11:12 AM on 17 March 2005

...the "fair meaning when it was developed" of "Congress shall make no law respecting an establishment of religion."

I hope the "fair meaning when it was developed" that you're talking about doesn't include the mid-20th-century innovation of a constitutional "wall of separation"...

Posted by: McGehee at 1:18 PM on 17 March 2005

My guess is the "fair meaning when it was developed" is probably best reflected in the Jefferson letter to the Danbury Baptists ... that great "letter of clarification" that Thomas Jefferson wrote back in 1802 ... a passage of relevance here being:

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State."

Kinda says it all ... 2 years into the 19th century ... with a definite relationship to the 18th century development of our country from none other than the man god Jefferson :)

Posted by: Ron at 5:01 PM on 17 March 2005

One problem: Jefferson had nothing to do with writing the Constitution. And it wasn't until the mid-20th-century that some idiot judge suddenly decided the passage in a private letter with no legal standing, should somehow come to overturn almost 200 years of Establishment Clause jurisprudence.

Care to try again?

Posted by: McGehee at 5:38 PM on 17 March 2005

Albert Speer didn't right Mein Kampf either but he was unarguable the architect of the modern 3rd Reich and understood the full meaning and prospect of National Socialism and its manifestation as extended from that infamous tome. While this analogy is not meant to be comparatively illustrative (I mean our constitution is obviously a blueprint for a nation not a blueprint for hatred as that Hitlerian screed)it is congruent in manner. Jefferson drafted the Declaration of Independence which grew out of the Virginia Constitution and his writings were indicative of the opnions and attitudes which prevailed at that time. The fact that Jefferson, albeit in France during the final constitutional committees, was in contact with the parties and Madison himself acknowledged Jefferson's agreement with the final Constitutional drafts indicates that Jefferson was a VITAL part of the process. He was no mere bystander to the process or its underpinnings and intentions, nay he was part and parcel in the process. His insistence there be both freedom of and also freedom from religion in the United States was indicative in his secularist interpretation of the Bill of Rights. One can find strong support not only in historical analyses of the lives and thought of the founding fathers, but in an examination of the Constitution itself. The document upon which our government is based never mentions "God," a "Supreme Being," or a "Creator," 8 and only mentions "religion" in the context of the First Amendment, which stresses religious freedom. But to relegate Jefferson to the background is innacurate.

Posted by: Ron at 6:11 PM on 17 March 2005

Fact remains, there was no "wall of separation" in Establishment Clause jurisprudence until more than a hundred years after Jefferson was dead -- in fact, it came about while some of us were already alive.

I guess even "original intent" can be "living."

Posted by: McGehee at 7:42 AM on 18 March 2005

Albert Speer didn't right Mein Kampf either but he was unarguable the architect of the modern 3rd Reich...

As opposed to the antique one? Calling him the architect "of" the Third Reich is kind of cute -- he came into Hitler's service as a designer of buildings.

Jefferson['s] writings were indicative of the opnions and attitudes which prevailed at that time.

Is that why his "wall of separation" seems never to have appeared in any of his contemporaries' writings? Madison was directly involved in crafting the Bill of Rights legislation, you'd think he would have had something to say on the matter. There was considerable debate in Congress over what became the First Amendment, wouldn't you think somebody would have brought it up?

One can find strong support ... in an examination of the Constitution itself. The document upon which our government is based never mentions "God," a "Supreme Being," or a "Creator"

You're calling that "strong support" for the "wall of separation"? Er, the words "wall of separation" also never appear in either the Constitution or the First Amendment. If your position is that a concept can be "in there" without being explicit, someone could choose to argue that the concept of God is also "in there," since the document is dated "the Year of our Lord one thousand seven hundred and Eighty seven."

And Ron? Paragraph breaks. Good things.

Posted by: McGehee at 9:55 AM on 18 March 2005

C'mon you KNOW Speer was much much more ... and my intent by saying it.

AND there was tremendous debate and discourse by Jefferson's contemporaries ... the word "wall of separation" was the terminology Jefferson used to describe the benign secularist intent in the constitutional provisions for religion ...

and McGehee I shall simply let this die because we both know what arguing on the internet is like ... and I don't want either of us to collect our little ribbon at the end of the race.

Live well ...

Posted by: Ron at 5:29 PM on 18 March 2005