If Scalia were anyone else you could take those remarks at face value and yes there is some truth to the fact that this country has a tradition of favoring the religious over the non-believers ( something I personally think is not in the spirit of our constitution), but this is Scalia and his personal views and prefer(e)nces are overtly in favor of religion. So when he says something like that he isn’t taking a neutral position, he’s implying that with the right cases brought before him and the court they could put religion ( and make no mistake, he means HIS religion) back in government. There is no mistaking the fact that Scalia believes religion has an important place in government and that he would like to see the supreme court take a position supporting this point of view.
On the contrary, Scalia believes that religion has an important place in society and that it is mistake to use the law created by a religious society to make the government neutral toward religion where that does not appear to amount to either the intent or the text of the law. That is the philosophy of the originalist..
How is this “on the contrary”?? You’ve basically agreed that Scalia thinks the governement should take a pro-religion approach. As far as being neither the intent or the text of the law I challenge to prove this point. The constitution and the bill of rights do not mention god once. The first ammendment reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Why do you think our founding father’s thought this was so important? Clearly they understood the importance of an individuals beliefs regarding this issue. Our history is repleat with immigrants who left their homelands and came to America even before there was a United States to escape religious persecution. The authors of the Bill of Rights put that in there because they wanted to make sure the governement did not show a prefernce for the religious beliefs of one group of citizens over another. They understood the importance of true religious freedom to any real democcracy. For Scalia to now claim that this freedom only applies to those who believe in god is clearly self serving and not based on anything you can glean from the first 16 words of the first ammendment. How could any true democracy not place the rights of atheists on the same level with believers.
Bryan - 15 June 2008 01:04 PM
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The flexibility and “vagueness” of our constitution is no doubt one of its greatest strengths but also its greatest weakness. To quote one of our greatest founders, Thomas Jefferson, “The price of freedom is eternal vigilance”. Those of us who care about such things as personal and religious freedom need to be vigilant against people like Scalia who are always lurking ready to limit those freedoms to attain their own goals.
So what do you suggest? A religious test for the supreme court?
Seriously, I’d be interested in seeing you give an example of a Scalia legal opinion that was based on religion rather than on the law.
Like it or not, when we vote for a president we are also voting for the supreme court. I think those of us who care about religious freedom need to vote for presidents who care enough about the same freedoms that they will choose nominees who respect those rights as well.
As far as the second part of your question, you know as well as I do that every decision is based on the law, but how one sees the law is obviously affected by ones own beliefs. Scalias opinions on allowing ID to be taught in schools, allowing public money to be used for religious school vouchers, and allowing the ten commandments to be placed in court houses all show where his particular biases are ( I can give you the links if you like, but you seem to be fairly adept at finding this stuff yourself). He clearly favors the religious over the non-religious, and this is not something the governement should be doing. Funny how it always seems to be his own religious beliefs that he comes down in favor of.
Certainly, America has a tradition of bigotry of various sorts—anti-african, anti-asian, anti-jewish, anti-catholic, anti-german, anti-irish, anti-hispanic, anti-native, anti-gay, anti-atheist ... If we’re deciding our court cases based on tradition, I suppose they’re all fair game.
Don’t forget anti-female......
Amen.
Like any other nation, American history is riddled with moments of both vulgarity and exceptionality. There are many currents in American thought, none of which are fair to deny the existence of. But if there is anything that Americans have most to be proud of, and I think that there is an incredible deal for us to be proud of, it is the relative intensification of such basic values as the intrinsic worth of all human beings and the notion that there are certain basic rights and liberties to which all people are entitled.
In general, an embrace of the idea of progress is also off paramount importance to the spirit which defines our country, and I think that it would be difficult to deny a progressive spirit that is embodied in the American revolutionary epoch and in such early documents as the US constitution. Importantly, this progressive attitude has led, over time and not all at once, to gradual specifiable improvements for deprived individuals and social groups.
It is intensely short sighted to excuse bigotry and the oppression of basic rights via technical extrapolations of early government documents.
More importantly, it is still bigotry and oppression.
I meant to say this but forgot.
Again quoting the first ammendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof “
And quoting the Merriam Webster dictionary on the definition of religion “a cause, principle, or system of beliefs held to with ardor and faith”
Atheism is a religious belief. Atheists hold to their beliefs about the existence of a deity ( or lack therof) as ardously as any Christian, Jew, or Muslim, and therefor those beliefs are protected by the first ammendment.
Perhaps Mr. Scalia is the one who is playing a bit too lose when he interprets our constitution.
Perhaps this is a tangent, but I see no faith component in atheism. Nor do I think that it is correct to regard atheism as consisting of a set of beliefs.
Of course, atheists do have beliefs just as all persons have beliefs. But their atheism is not particularly needed to define them.
If Scalia were anyone else you could take those remarks at face value and yes there is some truth to the fact that this country has a tradition of favoring the religious over the non-believers ( something I personally think is not in the spirit of our constitution), but this is Scalia and his personal views and prefer(e)nces are overtly in favor of religion. So when he says something like that he isn’t taking a neutral position, he’s implying that with the right cases brought before him and the court they could put religion ( and make no mistake, he means HIS religion) back in government. There is no mistaking the fact that Scalia believes religion has an important place in government and that he would like to see the supreme court take a position supporting this point of view.
On the contrary, Scalia believes that religion has an important place in society and that it is mistake to use the law created by a religious society to make the government neutral toward religion where that does not appear to amount to either the intent or the text of the law. That is the philosophy of the originalist..
How is this “on the contrary”??
Because it is based on the law and not on his personal bias, contrary to your contention above, and because a government that encourages religion seems different to me than a government that offers religion a place in government. That’s why.
it seems fairly plain that the originalist approach irrespective of bias, makes it the more stable and ultimately superior form of interpretation compared to the “living constitution.”
This is your stance, and so it “seems plain” to you. We wouldn’t be having this conversation if it really was so obvious.
Did you miss the contrast I drew with the “living constitution” approach?
I haven’t the time to search through Scalia’s public pronouncements, so I can’t demonstrate that he has claimed originalism is objective or free from bias. However, you clearly feel it is more objective and freer from bias than any alternative, and the approach is by definition intended to remove the subjectivity from the process of constitutional interpretation, so I’m arguing against an idea inherent in the paradigm regardless of what Scalia might or might not have said. Can you see originalism as making sense if one did not claim it had some objectivity or freedom from bias that it’s competitors did not have?
Sure, but there is an immense difference between claiming personal objectivity and championing the utility of a particular method in obtaining the best objective picture. You had focused on the person and not the method, Doc. I think your redirected focus on the method is entirely appropriate.
As for the examples you give of originalist approaches to interpreting the 2nd amendment, they demonstrate my point quite nicely. One can look at the exact words of the amendment only, and if the conventional grammatical function of the initial depend(e)nt clause “a well regulated Militia being necessary to the security of the State” is accepted and the meaning of “militia” and “State” understood as conventionally defined, then the sent(e)nce clearly includes the intent of the stipulated right, namely to ensure the security of the State through the maintenance of a well-regulated Militia. However, the originalists go beyond this to find textual evidence for a broader interpretation. There is no justification for this if one is claiming that the simplest and most direct understanding of the actual language of the document is the key to a “proper understanding” of it, as they do.
They do? Are you certain you’re not thinking of textualism?
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted. http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm
As for your claim that there is no justification for an originalist claim of personal gun rights, why do you suppose constitutional law rock star Cass Sunnstein (a liberal) presents the case (Akhil Reed Amar’s, that is) as though there is an originalist justification?
The same principle applies, of course, to “Thou Shalt not Kill,” which apparently doesn’t mean exactly what it says in the conventional interpretation of scripture even among the most literalist of Christian (for whom it seems to mean something more like “thou shalt not kill other human beings without a good reason.")
Again, your take reads more like textualism than originalism.
My point is that contemporary values and biases are just as involved in originalist acts of interpretation as in those of any other party, they simple refuse to admit it and claim, as you do, the superiority of some sort of objectivity and simplicity they do not demonstrably have.
Meh. You’re back to attacking the persons of those who claim to be originalists instead of the method. That’s too bad.
Acknowledging that values and standards change, and that the intent of the founders cannot be objectively determined beyond contention, is a sounder basis for interpretation because it allows us to identify and control for our biases in some rational way, rather than just claiming they do not exist. Now, the exact mechanism for establishing judicial rulings is one we could argue about, though I’m no constitutional lawyer so there would probably be lots of holes in my strategies (and yours too, surely, unless you are an expert in this field?). But my goal is not to establish a perfect mechanism but simply to point out that the advantages you claim for originalism are somewhat illusory.
It seems like your criticism would have fit narrow textualism better than originalism, in my opinion. But regardless of that I’m happy to note that you seem to be giving the issue a certain amount of due consideration.
You are correct in that I had textualism more in mind with my critique. Certainly, with respect to the second amendment, that is the case, in hich a literal reading of the text is inconsistent with the strict constructionists’ usual position on its meaning. An originalist position would certainly be more defensile, though there is evidence on both sides.
. However, many of my points still apply, perhaps even more forcrfully, as I see diving the intent of he writers, even with extra-textual information added in, still a wide-open door for introducing one’s personal values and biases into interpretation. Such intent can be, and is, frequently argued over with good faith on both sides, yet I do not see that the differing interpretations are based solely on “objective” criteria, since they fll so easily into camps corresponding to more general differences in philosophy of government and other social/political positions.
I am not attacking any individuals personally, only the argument they put forward. If, as you keep indicating, originalists claim a high degree of objectivity to their interpretations, which I see as untrue, then the only logical options are that they are mistaken or intentionally deceptive. I’ve already said I can provide evidence to demonsrate which is true in any given case, but they are both legitimate possibilities with no ad hominem about them.
However, many of my points still apply, perhaps even more forc(e)fully, as I see divin(in)g the intent of (t)he writers, even with extra-textual information added in, still a wide-open door for introducing one’s personal values and biases into interpretation.
How would you move the door closer to closed?
Such intent can be, and is, frequently argued over with good faith on both sides, yet I do not see that the differing interpretations are based solely on “objective” criteria, since they fll so easily into camps corresponding to more general differences in philosophy of government and other social/political positions.
I am not attacking any individuals personally, only the argument they put forward.
My point is that contemporary values and biases are just as involved in originalist acts of interpretation as in those of any other party, they simple refuse to admit it and claim, as you do, the superiority of some sort of objectivity and simplicity they do not demonstrably have. http://www.centerforinquiry.net/forums/viewreply/40064/
My point is that you are attacking the particular applications of originalism instead of the judicial philosophy itself. Is the problem then the philosophy or the failure to follow it ideally?
If, as you keep indicating, originalists claim a high degree of objectivity to their interpretations, which I see as untrue, then the only logical options are that they are mistaken or intentionally deceptive.
My indications relate only to the method, not to the findings of any particular justice, so your “as you keep indicating” seems amiss.
I’ve already said I can provide evidence to demons(t)rate which is true in any given case, but they are both legitimate possibilities with no ad hominem about them.
Is the medicine bad if the physician administered it incorrectly?
Because it is based on the law and not on his personal bias, contrary to your contention above, and because a government that encourages religion seems different to me than a government that offers religion a place in government. That’s why.
There is no such thing as a decision that is based solely on the law. The law is not that precise and every interpretation by definition requires an opinion which by its very nature is shaped by personal bias. Its a sham to somehow imply that textualists, constructionists, or originalists are free from bias in their decisions. Every interpreation of the constitution is shaded by one’s own personal biases.
There is little difference between a government that encourages religion and one that offers religion a place in governement. There is virtually no way to give an equal place in government to all religious points of view. Inevitably there is favoritism of one over another ( you swear on the Bible in court, not the Koran, or a Wiccan artifact, or the Principia Mathematics for that matter). Ultimately that comes across to the populace and those beliefs that are less popular are seen as less worthy by the citizenry and the government. All sorts of presecution and prejudice often follow. The only way to guarantee freedom of religion is for the government to have no involvement in religion. Since the dangers of governement involvment in religous activities are clear, and there seems to be no necessity for government to become involved with religous entities then it should not do so. Offering religion “a place” in governement does just that.
The only reason to allow religion a place in governement is to promote the views of one group over another. The not so subtle message being sent by people like Scalia is that while we may tolerate other religous beliefs, we want to make it clear that this is a religous ( and even christian) nation. In my view that is diametrically opposed to the intent of our constitution. Obviously in Scalia’s opinion ( and it IS his opinion, not THE LAW), that is not the case.
Well, we’ll just have to disagree about my emphasis on individual application of the principle itself. My understanding is that your primary recommendation for the originalist approach is that it is intrinsically more stable and superior to the lving constitution model when applied as objectively as possible. I think macgyver and I are both skeptical that it can be applied in this way by actual, living justices. I, further, am not convinced that the true intent of the founders, even were it objectively determined, would be the best guide for how we manage the problems our government and society face today, many of which they could not have had any comprehension of. Granted, the core principles and institutions have proven astoundingly successful, and I am not for willy nilly disregarding these, but I think your suggestion that that is the inevitable outcome of a non-originalist approach to construing the constitution is a bit fo a straw man. Certainly, such could be the result of not endeavoring to determine and honor above all other considerations the intent of the founders, but it need not be in practice.
Because it is based on the law and not on his personal bias, contrary to your contention above, and because a government that encourages religion seems different to me than a government that offers religion a place in government. That’s why.
There is no such thing as a decision that is based solely on the law.
If ruling on the law cannot be done without involving personal bias then why criticize Scalia on that point as you did?
Well, we’ll just have to disagree about my emphasis on individual application of the principle itself. My understanding is that your primary recommendation for the originalist approach is that it is intrinsically more stable and superior to the lving constitution model when applied as objectively as possible. I think macgyver and I are both skeptical that it can be applied in this way by actual, living justices. I, further, am not convinced that the true intent of the founders, even were it objectively determined, would be the best guide for how we manage the problems our government and society face today, many of which they could not have had any comprehension of.
The framers provided for amending the Constitution as well as legislating within it. That should offer you some comfort.
Granted, the core principles and institutions have proven astoundingly successful, and I am not for willy nilly disregarding these, but I think your suggestion that that is the inevitable outcome of a non-originalist approach to construing the constitution is a bit fo a straw man.
Uh--what? Where did I suggest an inevitable outcome of a non-originalist approach? I do recall suggesting that the “living constitution” appears to enshrine the personal bias of justices. Is that the same as suggesting an inevitable outcome?
Certainly, such could be the result of not endeavoring to determine and honor above all other considerations the intent of the founders, but it need not be in practice.
Even if a justice’s ruling based on the “living constitution” were entirely identical with the impossible perfection of an originalist’s ruling, how would the former ruling be said to be rooted in something other than the bias of the justice?
Because it is based on the law and not on his personal bias, contrary to your contention above, and because a government that encourages religion seems different to me than a government that offers religion a place in government. That’s why.
There is no such thing as a decision that is based solely on the law.
If ruling on the law cannot be done without involving personal bias then why criticize Scalia on that point as you did?
Because I have my own personal bias and I diagree with his interpretation of the constitution. My bias is in favor of a constitution that protects everyones rights not the narrow view he sees that protects only a select group. It may be a bit arrogant, but I think that gives my view the moral high ground.
Amending the Constitution is possible, but exceedingly difficult, as it should be. I happen to feel the alternative of interpreting it in reasonable but flexible ways has worked out pretty well, though I suspect you don’t.
Rhetorical nitpicking, as far as I’m concerned, when it comes to your statements about the alternative to the originalist approach. You suggest and imply quite clearly that constitutional law becomes nothing more than a popularity contest if the “living constitution” model is accepted, and you promote the originalist method as more stable and superior. I infer that you feel the living constitution approach would lead to the biases of judges and the whim of the populace taking the place of sound, consistent law, and it is this contention that I intended to challenge.
Even if a justice’s ruling based on the “living constitution” were entirely identical with the impossible perfection of an originalist’s ruling, how would the former ruling be said to be rooted in something other than the bias of the justice?
The living constitution approach involves, IMHO, a similar problem with bias as the originalist approach, the bias being the judges’ personal views influencing their understanding of the best solution to the particular dilemma under consideration in its complete context, rather than influencing their understanding of the founders’ intent and the “proper” understanding of the documents as in the originalist approach. Obviously, personal bias is something judges endeavor to control, never with complete success, and this is the same for both models. I do not see the originalist model as more proof against this than the other, as you appear to and as we’ve already been over above. The main difference in this respect is that the originalist approach is presented as less susceptible to bias, which I’ve already argued I don’t believe to be true.
However, other than the judges’ imperfectly controlled biases, there are many factors that influence their interpretation under the living constitutional method. There is the text itself, which contains limits obvious to any reaosnable person, which most judges probably are (it would be difficult to rule for a constitutional right to own slaves regardless of how popular slavery was or how the judge felt about it, without completely disregarding the obvious meaning of the document). There is precedent, which still holds great importance. There are the facts of the case. There are all the protections of reason and logic that allow all human institutions to function and change despite the imperfections of individual humans. As I’ve said before, I’m no expert in constitutional law, so I can’t propose an ideal system. I simply don’t agree that the originalist position is as strong or the living constitution system as weak or whimsical as you suggest.
I just remember a few years ago,when I read in the paper and heard on my morning radio news show,that Scalia went duck hunting with Dick Cheney,in Louisiana! I dont know,is that ethical? I doubt Scalia cares about the peoples law too much! I bet Scalia is an atheist! I KNOW he favors corporate freedoms.I bet Scalia got “We the corporation...” confused with “We the people...”!
He probably got that confused in grade school,and never quite got it right again!
