The operative part of the first phrase is “your understanding”. You do the best you can. No one can every be 100% sure you know the intinent of another human being under ANY circumstances. But you do your best. In the case of religion, I do think there is an added barrier for us modern types to understand the mindset of pre-Darwin folks.
In the end, though, we **are **left with the text. If all else fails, try to be as true to the text as you can. Sometimes it’s pretty obvioius: “Congress shall make no law…” pretty much means what it says. Other times, it’s much less clear: “cruel and usual”. In that latter case, the ambiguity serves the purpose of explicitly sanctioning a changing standard.
From my perseptive, posting the 10 Cs on government property violates the establishment clause, primarily because of commandment numero uno. But I can see where others might think differently, especially if it’s part of some larger display of historical documents. A much more clear cut case, IMO, was when the SC ruled against the legislature of one state (Kentucky?) passing a law requiring the 10 Cs to be posted in all classrooms. But if a government building has some biblical passage posted prominently, as a means of inspiration, I think we have to let that slide (as long as it’s not something like “Anyone who doesn’t worship Christ will be damned for all eternity” ).
In this country, the power of government is supposed to come from/through the consent of the governed. It is not ordained or annointed by God. Or are we going back to the old idea, “the divine right of kings”? :dubious:
As someone who has devoted a lot of time to the jurisprudence of Scalia, most of this debate is moot, because Scalia categorically rejects the value of legislative intent. He doesn’t necessarily care what the founders meant or thought. He recognizes the inherent messiness of the legislative process, and the impossibility of finding the “intent” of words that are the result of near-endless argument and compromise between many parties that in many cases radically disagreed. In Scalia’s world, legislative intent is never dispositive, and is only used (if at all) as supporting evidence.
Instead, Scalia’s only focus is on the STATUTORY LANGUAGE. In essence, Scalia says that: Laws are words, and the meaning of those words is all that matters. If the statutory (or constitutional) language is clear, then interpretation is easy. If not, to determine meaning he looks to what the words used meant at the time they were written. While this may resemble legislative intent to the untrained eye, it is not. If there is an interpretive question, he consults the common usage of a particular word or phrase at the time it was drafted, but at no time does he advocate delving into the psyche of legislators.
Once one understands this, Scalia’s positions are easily deciphered.
Oh, and to those who think that Scalia filters his judicial opinions through his own religious convictions, or those that think Scalia is simply a conservative judicial activist on the opposite side of the coin as William Brennan, well, you are just wrong, and I encourage to learn a little about his philosophy and read his opinions. Just one example:
As an orthodox Catholic, personally, Scalia no doubt views abortion to be nothing less than cold-blooded murder. Further, a position that abortion is an unconstitutional taking of life is MUCH more supportable by legal reasoning that the abomination that is Roe v. Wade (and I say this as someone who is pro-choice). Yet Scalia never employed such an argument. Instead, he recognized that the Constitution says absolutely NOTHING about abortion, and thus it is matter to be left to the states, who are free to do with it as they please. This means that most states would still have legal abortion, which (again) to Scalia is deplorable.
As a newbie who doesn’t want to get off on the wrong foot here, I’d like to add:
I didn’t intend to insult anyone or be a smart-ass with the “untrained eye” comment. To the contrary, I have been very impressed by the quality of debate on this board.
If Scalia doesn’t filter his opinions through his religious conviction why did he keep harping on the “government authority comes from God” idea in the cite of the OP? The Constitution doesn’t say anything about that either, nor, as far as I know does any legislative language.
“If Scalia doesn’t filter his opinions through his religious conviction why did he keep harping on the “government authority comes from God” idea in the cite of the OP? The Constitution doesn’t say anything about that either, nor, as far as I know does any legislative language.”
Statement at issue:
“Scalia: And when somebody goes by that monument, I don’t think they’re studying each one of the commandments. It’s a symbol of the fact that government comes – derives its authority from God.”
I’m not exactly sure what you mean, and thereby how to answer.
I don’t see how this statement, in the context that it is made, even remotely impugns Scalia’s judicial temperament. This is simply a statement made during oral argument (and taken out of context, at that), NOT the basis of a judicial opinion. Specifically, it is merely Scalia’s opinion as to the symbolic meaning of the monument. I guess it is troubling to some that he apparently agrees with this purpose (as could be inferred by his use of the words “the fact”), but as the abortion example illustrates, using his personal views as the basis of his jurisprudence is anathema to Scalia.
Using an isolated statement made in oral argument to question a justice’s legal philosophy is questionable at best.
On further reflection, what seems to be troubling most on this thread is that Scalia might personally believe that Government derives its authority from God. (I can only assume this is so because this view has never been used to justify any of his opinions.)
This is telling. In my view, such worries are the direct result of a judiciary that increasingly decides cases not on law as it is written, but according to the subjective vision of whoever happens to be wearing the robe. We are continually moving away from the “rule of law, not men.” In this climate, it is no wonder that every statement of a justice is dissected in this manner, or that the judicial confirmation process is the ugliest it’s ever been. Such a world is exactly what Scalia’s philosophy seeks to avoid.
What is consulting “the common usage of a particular word of phrase at the time it [a law] was drafted” other than an attempt to determine what the legislators of that time intended?
Are we then to disregard questions asked and statements made during the arguments as being just a waste of time as to a the thinking of a justice regarding a case?
An isolated statement!!?? The cite in the OP is 57 pages long and I can only find one comment or question by Scalia in it that doesn’t refer to government and our laws being derived from God.
Yes I know about Devil’s Advocate type questions to elicit an expansion of a point of view, but for Scalia’s fixation for the entire oral argument?
I don’t understand this argument. Oral arguments reflect the basis for the resulting opinion; to dismiss them as somehow insignificant is simply avoiding the debate. So does minimizing the importance of these statements as “merely Scalia’s opinion”; the statements of a Supreme Court justice, expressed in the oral arguments of a case before the court, are no mere personal belief to be lightly dismissed. As for being taken out of context, as pointed out, it is a view that Scalia repeated over and over, so there is nothing “isolated” about the meaning of this statement.
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