http://hosted.ap.org/dynamic/stories/S/SCA...EMPLATE=DEFAULT

 

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.

 

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

 

"Why in the world would you have it interpreted by nine lawyers?" he said.

 

What do y'all think?

I cant stand Scalia. He talks about stuff he himself doesnt follow in legal cases. How can he expect "no cruel and unusual punishment" to be interpreted strictly and still allow states to have the death penalty at all let alone for minors? At least the open interpretation allows for the death penalty in the first place.

Here is a good commentary someone else gave on Scalia. Ill also add the inconsistency I found:

 

Let me say in support of Professor Franck that the problem with Scalia's use of originalism in Lawrence and elsewhere is not that Taney's opinion in Dred Scot makes arguments against living constitutionalism of the sort that Scalia makes in Lawrence.? Taney also makes historical, textual, structural and precedental arguments; that does not mean that these sorts of arguments are thereby forever tarred with the evils of Dred Scott because they appear in Taney's opinion.

 

Rather, the problem with Scalia's use of originalism is twofold:? First, it is often badly done, which is the point that Professor Franck makes about Taney's originalism: Both Scalia and Taney do questionable history in order to achieve a political conclusion that each likes. Then each of them has the nerve to insist that any other way of interpreting the Constitution is illegitimate and, in Scalia's case, to denounce and ridicule anyone who disagrees with him.

 

The second problem with Scalia's use of originalism is that it is opportunistic.? Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy, and his favored values.? You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases.? Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations.? But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment's section one, at least as originally understood by its framers.? (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed.? (See Jed Rubenfeld's 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman's Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them.? The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it's unclear how either Scalia or Thomas could have joined the Adarand decision.

 

At the end of the day, Scalia may be correct that the best translation (in Admin Lessig's terms) of the original understanding is a strict colorblindness rule.? But I doubt it, and even if that is so, Scalia refuses to adopt that sort of translation methodology, because it is the very sort of living constitutionalism that he disdains.? So he can hardly employ it to justify his position in the Michigan cases.

 

Stare decisis must temper originalism, and that is how many non originalist decisions like Bolling v. Sharpe (and Adarand) might be justified for an originalist.? The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent.? Rather, they pick and choose, depending on which constitutional rules they like better.? It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey.? He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him.? And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution.? The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes.? In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges.? Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was.? Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.

 

Jack Balkin

 

 

 

http://www.mail-archive.com/[email protected]/msg00814.html

Another great example is property law cases. History tells us the framers knew full well that the government was going to take property through eminent domain and hence didnt expect any restrictions on the government except just compensation. Now nothing implies that regulation over land can so affect it as to constitute a eminent domain action through the framers. None the less the court has interpreted such a requirment. Now not only does Scalia not critisize this, but he has written opinions that further control this government tool. Why do you ask? Because all the cases he deals with involve wealthy land owners who run into the local governing body. Think there is reason for this?

Instead of bashign scalia why dont you think nonpartisanly for a second. The cruel and unusual punishment amendment (8), has to be interpreted openly in order to institute things like bail, parole, to ban work sentences in many places. It needs to also be applied openly to BAN the death penalty, because whats cruel and unusual is left to a matter of opinion. I dont believe in strict interpretation of the const., but scalia is right in saying that things such as abortion should be decided by the majority not by judges. B/c you dont like him or b/c you think hes a hypocrit does not mean that his statement above does not hold weight

Instead of bashign scalia why dont you think nonpartisanly for a second. The cruel and unusual punishment amendment (8), has to be interpreted openly in order to institute things like bail, parole, to ban work sentences in many places. It needs to also be applied openly to BAN the death penalty, because whats cruel and unusual is left to a matter of opinion. I dont believe in strict interpretation of the const., but scalia is right in saying that things such as abortion should be decided by the majority not by judges. B/c you dont like him or b/c you think hes a hypocrit does not mean that his statement above does not hold weight

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Whether it holds weight or not is a great discussion to have as it was done earlier. But the problem with Scalia is an issue of philosophy over one of individual interpretation. Scalia plain and simple insults those who do not follow original intent. Its fine if you have such a philosphy because at least that debate can be had in the trenches. But if Scalia himself doesnt follow it consistently then one has to question its credibility and addition to his own especially when he is constently offending other judicial actors. Scalia earns whatever he gets because he pushes the buttons to make it seem like the other side is a bunch of idiots. In reality, Rehnquist often does the same exact thing in terms of original intent inconsistency. But unlike Scalia he doesnt engage the discussion to such a heated level as if to make it a personal agenda.