RIP Scalia

[BigT]

@iiandyiiii

As far as the moral dimension of Scalia’s position on torture, I’m not sure. I believe the “strict Constitutionalism” style of interpretation advocated by Scalia and others has merit, since it (on the face of it, at least) attempts to evaluate law without any bias… but that doesn’t mean that other interpretations might not be morally superior in some cases.

For example – if, in some absurd hypothetical, a Constitutional clause is written in a way that seems to mandate slavery and torture for all people of a certain race, but there is some method of interpreting the clause such that it does not require this, then a hypothetical judge would be bound by human decency IMO to interpret it in a way against mandating slavery and torture. This is how the SC justices should have voted in the Dred Scott case, in my view – finding some interpretation (I think the due process and life/liberty clauses would have made this easy) to outlaw slavery is required by human decency, even if this may not be a “strict Constitutionalist” interpretation. But this doesn’t apply for everything, since the moral dimensions of a particular case are rarely anything close to as clear.

I’m not sure about the torture question in particular, but I’m inclined to answer that it would be evil to not find some way to interpret the Constitution in a way that would outlaw torture – and this doesn’t seem like it would be particularly difficult to do. I’m not certain about this, just inclined to feel this way.

This is simultaneously really close to what I would say, and completely the opposite.

Your second paragraph is basically what I came here to post, in response to Bricker’s last post. I actually had a really long post already set up, but I thought to look back and see what else had been said. And of course ol’ two-eyes-four-eyes gets it.

I would be a little stronger in your last paragraph. I’m not just inclined, but absolutely certain that, given what is already in the Constitution, it would be evil not to find something in the Constitution that would outlaw pre-trial torture. The interpretation is there in the text. That Scalia didn’t see says bad things about him.

Which nicely leads me to your first paragraph, which I do disagree with. Scalia’s methodology doesn’t find what the law says without bias, and thus is not really all that useful. It is missing what is necessary to accomplish that–enumerating your own biases and looking at how they influence your interpretation of the text.

Text has no meaning without interpretation, and interpretation cannot occur without bias. Bias has to be countered–no system can get rid of it.

What’s more, it’s not as if it was ever taken as just the unbiased look. It was the only way of looking at things. And that spread to a lot of people and did a whole lot of damage to the country, in the same way Biblical literalism harmed Christianity.

[Starving_Artist]

Different people see things in different ways, and the trouble with spinning off interpretations different from the Constitution’s literal meaning in order to get rulings you favor, is that you not only wind up with laws the Constitution never intended, but no one can ever be secure as to what the Constitution prohibits or allows as it’s all subject to the whims of various judges based upon what they think the law ought to be. Basically you end up with a situation where various members of the judiciary up and down the chain are essentially saying "The law is whatever I say it is!". I don’t think either the rule of law or the country itself would be well served by a scenario like that.

[BigT]

@Bricker

Their role Is not to fix wrong things. The courts are not super-legislators.

Maybe not superlegislators, but they are legislators, just with limitations. They make laws–that’s how common law works.

And their job most emphatically is to fix wrong things. That’s not only literally what they do, but the actual purpose of a Court system in general. Aggrieved parties argue their cases, and the Court decides.

They can’t actually do everything, no. But they can do a hell of a lot. The Constitution doesn’t cover everything, but it covers a lot, even with people like Scalia trying to limit it.

And as for your main question: I’m no lawyer. I can’t actually debate you at that level. But I can try to go by what the Ninth said. And while I’m having trouble finding the actual arguments they used (as the article doesn’t mention the name of the case, and I didn’t find it on Wikipedia’s list of 2002 cases, it sounds as if they invoked the Fifth Amendment, claiming it amounted to punishment without trial.

Generally speaking, the Ninth is the one that I think most aligns with my views on how the Constitution should be interpreted. So I’d give them the benefit of the doubt.

[lance_strongarm]

@TonySinclair

Well, I just had a shock.

Talking about asshole decisions,

It’s not an asshole decision to say what the Constitution says (or what he believes it says).

If a judge rules that the Constitution allows the innocent to be executed, its the Constitution that is the asshole, not the judge.

Perhaps he can be as asshole for being wrong about the Constitution though.

[iiandyiiii]

@Starving_Artist

Different people see things in different ways, and the trouble with spinning off interpretations different from the Constitution’s literal meaning in order to get rulings you favor, is that you not only wind up with laws the Constitution never intended, but no one can ever be secure as to what the Constitution prohibits or allows as it’s all subject to the whims of various judges based upon what they think the law ought to be. Basically you end up with a situation where various members of the judiciary up and down the chain are essentially saying "The law is whatever I say it is!". I don’t think either the rule of law or the country itself would be well served by a scenario like that.

Except that, since language can vary, even determining the literal meaning requires interpretation. All readings require interpretation.

[lance_strongarm]

@Starving_Artist

Different people see things in different ways, and the trouble with spinning off interpretations different from the Constitution’s literal meaning in order to get rulings you favor, is that you not only wind up with laws the Constitution never intended, but no one can ever be secure as to what the Constitution prohibits or allows as it’s all subject to the whims of various judges based upon what they think the law ought to be. Basically you end up with a situation where various members of the judiciary up and down the chain are essentially saying "The law is whatever I say it is!". I don’t think either the rule of law or the country itself would be well served by a scenario like that.

That’s why we have nine justices on the court instead of just one. Nine perspectives on how to interpret, and nine critics willing to call out others when they go too far.

On that note, Scalia was often wrong, really wrong, but when he was right, he was really right, and his concurring opinion in Citizens United is a great example of calling out ridiculous overreach by his colleagues. Worth a read:

https://www.law.cornell.edu/supct/html/08-205.ZC1.html

[Acsenray]

@Bricker

No, it’s not absurd. You see what you did there? You switched from the first sentence - what is or is not constitutional - to the second sentence: whether or not it should be done.

The Constitution does not prohibit all terrible things. You seem to think that it’s an obvious conclusion that somehow, somewhere, the Constitution forbids every single terrible thing there is. “Torture is terrible, therefore it is unconstitutional.”

But that’s not correct. The Constitution does not forbid all evil any more than it mandates all good. It simply lays out the powers of the federal government and the limits on the power of states and federal government.

What makes you think that it is also somehow a barrier against all things horrible?

Nope, I did not say that the Constitution bans any and all bad things. I said that it is an absurd Constitution that would bar torture of a person who has been by due process legitimately convicted of a crime, but would allow torture of a legally innocent person.

Those two things are not two random horrible things that I’ve drawn out of a hat. They are inextricably logically linked to each other. If the government cannot treat a convicted criminal cruelly then it cannot treat anyone who is less culpable than a convicted criminal cruelly. There is no way to morally or logically separate the two concepts.

Whether one decides that the 8th Amendment by itself means that or that some combination of the 5th-8th Amendments mean that may be an interesting academic argument, but it simply cannot be that the intent of the Constitution is to prevent cruel treatment by the justice system of a properly convicted criminal but to allow cruel treatment by the justice system of someone who is not a properly convicted criminal.

[elucidator]

Its a lovely story, really, how the Founding Fathers gathered together to create a framework to embody the hard-fought principles of the American Revolution: liberty, freedom, equal justice for all. Of course, it was no such thing, nor was it ever intended to be. It was simply a matter of replacing an inherited rulership with one purchased on the open market. Still, some progress, sorta kinda.

Thanks for your lovely pamphlets, Mr. Paine, run along now, the grownups have business to conduct.

[lance_strongarm]

@elucidator

Its a lovely story, really, how the Founding Fathers gathered together to create a framework to embody the hard-fought principles of the American Revolution: liberty, freedom, equal justice for all. Of course, it was no such thing, nor was it ever intended to be. It was simply a matter of replacing an inherited rulership with one purchased on the open market. Still, some progress, sorta kinda.

Gee, thanks, cynical guy who thinks he knows more than everyone else.

[elucidator]

Oh, not everyone. More than you, certainly.

[Richard_Parker]

A liberal colleague of mine clerked for Scalia. His first question in the interview was this: Tell me a recent opinion of mine that you disagreed with so we can argue about it.

Acsenray: I don’t remember the full context of Scalia’s remark. Is it clear that he doesn’t think that either the Fourth or Fifth Amendment prohibits intentional infliction of harm on detainees for the purpose of either punishment or coercing confession? I don’t think that’s true.

[Bricker]

@Acsenray

Whether one decides that the 8th Amendment by itself means that or that some combination of the 5th-8th Amendments mean that may be an interesting academic argument, but it simply cannot be that the intent of the Constitution is to prevent cruel treatment by the justice system of a properly convicted criminal but to allow cruel treatment by the justice system of someone who is not a properly convicted criminal.

Ok.

So if an examination of the Constitution reveals that, in fact, it prohibits cruel treatment of a properly convicted criminal but is silent on the matter of treatment of others, isn’t the right answer to amend the Constitution?

I mean if, literally, the Eighth Amendment said, “This prohibition against torture applies only to those convicted of a crime, and no one else,” then should courts say, “No matter: hand me that pen; there’s some room over here by the right margin?”

I say the correct answer is twofold: Congress can always forbid the undesirable conduct by statute and if the desire is that the prohibition be of constitutional dimension, we amend that document.

Look, we faced this issue with slavery: the Constitution permitted slavery. That’s unabashedly evil, right? Slavery! And to address this serious lack, we adopted the Thirteenth Amendment.

Women were not permitted the right to vote. I don’t think that’s slavery, exactly, but it’s certainly wrong – agreed? We fixed it with the Nineteenth Amendment. And we fixed the vote for 18-year-olds the same way.

Why is this preferable to letting wise judges do the job?

Because sovereign power rests with “We, The People.” Congress can be replaced every two years; the President every four. In that latter period, two-thirds of the Senate must also be re-elected. State legislatures face similar constraints. We exercise our collective will through elected officials. That’s the gravamen of representative democracy.

Federal judges enjoy lifetime appointments. They are immune from election pressures, by design. But this also places them outside the reach of electoral correction.

The Constitution is the supreme law of the land. If our notion of representative democracy means anything, it is that unelected, lifetime appointed judges should not be the ones that write it.

[Dinsdale]

@elucidator

Its a lovely story, really, how the Founding Fathers gathered together to create a framework to embody the hard-fought principles of the American Revolution: liberty, freedom, equal justice for all. Of course, it was no such thing, nor was it ever intended to be. It was simply a matter of replacing an inherited rulership with one purchased on the open market. Still, some progress, sorta kinda.

Thanks for your lovely pamphlets, Mr. Paine, run along now, the grownups have business to conduct.

Freaking hysterical! And, I suggest, contains a LOT more truth than many folk are comfortable admitting. Thanks.

[Hamlet]

@Richard_Parker

A liberal colleague of mine clerked for Scalia. His first question in the interview was this: Tell me a recent opinion of mine that you disagreed with so we can argue about it.

I was lucky enough to be included in a small group of law students who got to sit down and talk with Justice Scalia when he came to talk to our law school, many, many years ago. He was an inconsiderate, egotistical jerk who, while extremely smart, had little regard for the opinions of others and (most damning in my eyes) was a jerk to the wait staff and handlers. He certainly loved to argue (or more precisely forcefully state his opinion), but had no interest in actual debate.

[Richard_Parker]

@Hamlet

…but had no interest in actual debate.

I don’t agree. This is a guy who included the full essays of his critics in his most famous book. He consistently hired liberal clerks and engaged them in genuine discussion. All of his liberal colleagues on the Court said that (at least before the last few years) he was generous, kind, and happy to engage in honest debate. Liberal clerks for other justices have written that Scalia, in contrast to Alito and Thomas, was warm and open and helpful to them.

I don’t doubt the rest of your assessment. I’m sure he contained multitudes, like all of us. I just think the overall caricature painted of him is not quite fair. However inconsistent he was in the application of originalism (and however much he chose that method of interpretation because he liked the results), I think it’s pretty clear he sometimes followed it places he didn’t like (sentencing and the Sixth Amendment come to mind) even when there were fair arguments on both sides. That’s a pretty rare commodity on either side, and is what separates rule of law from rule of men.

[Really_Not_All_That_Bright]

I respect his legacy of bringing a sort of rigor to constitutional jurisprudence that was lacking. I don’t respect him at all for what others (generally on the right celebrate him for): avoiding results-oriented jurisprudence. He was just as much of an activist as Breyer or anyone else, and ignored canons of construction and his own prior writings when it suited him.

[lance_strongarm]

@elucidator

Oh, not everyone. More than you, certainly.

No, not even me, at least when it comes to this issue.

[lance_strongarm]

@Hamlet

I was lucky enough to be included in a small group of law students who got to sit down and talk with Justice Scalia when he came to talk to our law school, many, many years ago. He was an inconsiderate, egotistical jerk who, while extremely smart, had little regard for the opinions of others and (most damning in my eyes) was a jerk to the wait staff and handlers. He certainly loved to argue (or more precisely forcefully state his opinion), but had no interest in actual debate.

So you’r saying Scalia used to post on StraightDope?

[VinylTurnip]

Hurrh, sir, and I furthermore I daresay durrh.

[Richard_Parker]

@Really_Not_All_That_Bright

I respect his legacy of bringing a sort of rigor to constitutional jurisprudence that was lacking. I don’t respect him at all for what others (generally on the right celebrate him for): avoiding results-oriented jurisprudence. He was just as much of an activist as Breyer or anyone else, and ignored canons of construction and his own prior writings when it suited him.

At least some of the time, perhaps a small amount of the time, he followed his method to places he did not personally like. How would you assess whether Justice Breyer has ruled contrary to his method? It’s much harder, I think.

To me, the problem with Scalia’s jurisprudence wasn’t that it was equally results-oriented as anyone’s. It’s that he prioritized avoiding results-oriented jurisprudence over getting it right–

In my view, the purpose of a Constitution is to set forth some inviolable principles. It’s not a statute with a harsher amendment requirement. If it were, it would be written like a statute. Instead, it is much more vague and abstract, especially in the Bill of Rights. The goal of constitutional jurisprudence should be to take old principles and apply them to a new world. The liberals generally want to decide what the core principle at issue is–based on the text and the history–and are willing to apply that principle in ways that the framers of the text would not have anticipated. The liberals say that what changed is not the principle, but all the other inputs and understandings about the world that affect what the principles tells us we must do. Scalia rightly recognized that this introduces some degree of subjectivity. Which inputs and understandings about the world do we use, if not the individual judges’? What gives unelected judges the awesome power to decide that his or her current understanding of the world reigns supreme in applying the old principles?

He’s not wrong about that, in my view. He’s just wrong that subjectivity is the greatest evil to be avoided. The greater evil would be not to faithfully attempt to apply the principles. So I think you probably have to bite the subjectivity bullet to side with the liberals. It’s not that Scalia’s method isn’t also full of opportunities for bias and subjectivity. It’s just marginally less so. (And the contrary is true. It isn’t the case that the liberals are completely unmoored. Just marginally more so.)