Does it really? All the lawyers and judges I know, of all political stripes, have respect for his legal acumen, even if they don’t always agree with him. As a layperson, I find his reasoning and writing pretty persuasive most of the time.
I think Scalia has a point in that’s it’s very tempting to assume that evolving standards of decency will result in standards that match your own. To use the 8th as an example:
Let’s say that at some point in the next 50 years or so, 95% of Americans come to the conclusion that prison, instead of say a rehabilitation program, is cruel and pointless. Let us accept that the standards of decency have indeed evolved, and there is broad consensus on this point. Would a law sentencing a murderer to prison then become unconstitutional? If the legislature was still working on revising the criminal code, would the courts be the best way to address this change?
Let’s go the other way, let’s say due to a series of terrorist attacks, say a nuclear attack on New York, American shifts the other way, and becomes intensely conservative and the religious right makes a huge comeback. So much so that they now have a 95% majority, and they feel that torture of terrorists isn’t cruel and unusual. Would torture then become constitutional because standards have evolved? You might argue they’ve devolved… but that’s the same argument Evangelicals are making** right now**, so be careful where you take that line of thought.
Do either of those scenarios seem totally insane to you? If not in 50 years, but 100? I would say much weirder things have happened over the course of multiple generations.
One more, just for fun: there are some who feel that dolphins and higher primates should be considered non-human persons. If a broad consensus develops and literally every person in America thinks that dolphins should be accorded the same rights as humans, would the 5th and 14th amendments now apply to them? I think it’s safe to say that the people who wrote and voted for those amendments would be flabbergasted that they would be applied to dolphins, but they’d probably be amazed at a lot of things those amendments have been applied to.
I’m fairly liberal, but I’ve never had much of a problem with Scalia’s opinions because in general, he seems to accept that most of what he doesn’t like will still happen if the legislature wants it to. The obstacle is people who don’t believe what I believe, but Evangelical creationists get to vote too.
Well, yes. That’s why we don’t much give a fuck what they would have thought of our interpretation. They gave us some great principles, but were fairly useless at actually applying them.
I’d say more accurately it leaves one dubious of his intellectual honesty. He appears to predetermine his finding and look for rationalizations to support it.
So if people thought dolphins were people, you would start applying the 14th amendment to them? You don’t think that deserves its own amendment, or even a law to that effect? The supreme court could rule that we’d have to grant them the vote and that killing a dolphin would be murder, all absent any action by the citizenry or the legislature?
I think that’s insane, frankly.
And you didn’t answer my question about what happens if American turns conservative. Could the supreme court reinterpret the 8th to allow torture, if most people supported it? What would the 8th amendment actually be preventing?
No. I’m not saying the 14th Amendment should be applied to dolphins just because lots of people want it to be. I’m saying we shouldn’t refuse to do that just because the framers of the amendment would have thought it was stupid; we shouldn’t do it because it is stupid.
Of course it could. The Constitution is not some infallible holy book (leaving aside the question of whether such things exist.) It’s a pretty clever organic law, but it’s only useful insofar as the people respect it and apply it honestly. If the government wanted to torture people and the judiciary didn’t mind, nothing in the 8th Amendment would prevent it. It just so happens in that particular case that it was easier to redefine torture than it was “cruel and unusual punishment”.
My point is Scalia would mind, which is why I like his jurisprudence.
I’m trying to figure out what sort of judicial philosophy you are trying to defend here. “It’s stupid” doesn’t really cut it. Who is “we” in “we shouldn’t do it”? The supreme court? The point of my hypothetical is that if the citizenry think dolphins qualify as people, would you fault a Justice for applying the 14th amendment to them? (evolving standards). Would you fault Scalia for arguing against it? (Texualism)
Judicial review arises naturally from the powers of the Supreme Court, even though it’s not stated specifically.
From Article 3, Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
If we have decided that the commerce clause gives Congress sweeping powers to regulate the economy despite it’s fairly narrow meaning, then this section, which is far broader, gives the Supreme Court complete power to overturn any laws that contradict the Constitution.
Judicial review is not an obvious natural power. Other political systems don’t have it. Britain, which is arguably the closest model that existed for the American political system at the time the Constitution was written, does not have any equivalent of a court which can overturn a law enacted by Parliament.
And while you can certainly make an argument that the text you quoted can be interpreted to give the Supreme Court the power of judicial review, that’s exactly the kind of argument textualists and originalists oppose in other circumstances. For them to switch to a broad interpretation when it supports their opinions demonstrates they don’t hold their principles very strongly.
To give a more realistic example, I can guarantee you that nobody who had anything to do with writing or ratifying the Bill of Rights ever thought those rights applied to corporations. There is no possible originalist or textualist argument that can be made for that belief.
The idea of corporate personhood arose out of court cases in the nineteenth and twentieth centuries. So if you accept the principle of judicial precedent then there’s a very good argument to be made for the Citizens United decision.
So how did an originalist justice like Scalia concur with that decision? Simple - he threw his originalist principles out the window. He abandoned the principles he claims to hold dear and embraced the principles he claims to oppose because in this case he needed a different set of principles to arrive at the conclusion he wanted to reach.
Scalia calls himself a textualist, not an originalist, as my mother (a lawyer) was just explaining to me. She’s reading Scalia’s book, “Reading Law: The Interpretation of Legal Texts.”
[QUOTE=John Marshall]
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions – a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the Constitution.
Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?
The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”
If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?
“No person,” says the Constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:
I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
[/QUOTE]
All cases under this Constitution. If someone questions the constitutionality of a law, then the Supreme Court decides it, because it is a case arising under this Constitution.
Scalia has also called himself an originalist on numerous occasions. Sometimes he’s a textualist, sometimes he’s an originalist, sometimes he’s a formalist or a dualist or a pragmatist or a realist or a purposovist or a translationalist. Basically, Scalia decides what result he wants and then finds a principle that will get him to that result - and usually declares it was the only possible result.
Sorry I’ve missed the thread. As President Washington increasingly argued for centralized power, the opposite of what Jefferson envisioned. Washington was pilloried in a certain segment of the press for this. Turns out that Jefferson was secretly sponsoring the press reports and Washington found out about it and never spoke to Jefferson again. Washington also never spoke again to George Mason the anti-Federalist who did not support the new constitution. They were neighbors and good friends before that.
Scalia is basically an authoritarian and dresses stuff up with whatever intellectual wallpaper suits the particular case, but you’ve nailed it. Every once in a while it occurs to him that personal privacy of white male adults like him is important, and he deviates just a little bit. Personally I think that Scalia is the worst justice on the court ever, even worse than McReynolds, because he basically dresses up his assholeness with enough jargon that it is influential with the other morons that populate the Republican half of D.C.
And later when Jefferson became president he did whatever he could get away with. E.g., he could find no constitutional authority for making the Louisiana Purchase, but it was too good a deal to pass up.