Scalia on the Constitution's view of religion

raburrell said:

Sorry - I was disagreeing with your contention that Scalia's purported adherence to original intent is less fraught with risks of justifying his own ideological biases than another justice who hews to a living document interpretation. I'd say they're equally susceptible, but Scalia's tactic is akin to shoving his biases under the rug and walking away whistling, hoping no one notices the pile.

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Just to be clear, Scalia is actually a critic of original intent, not a proponent of it. Scalia claims to adhere to original meaning.

But I think I understand what you're trying to say. Can you say more about why you think the two are equally susceptible?

blacbird said:

He's politically astute, and capable of tailoring his comments to suit his audience. You'll note that in the instance cited in the OP, he was speaking at a conservative Christian school. He might not think it as appropriate to say these things in a different venue.

caw

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This is more meta and less about Scalia himself, but it seems the "politically astute" in recent years would be more careful what they say regardless of where they say it, as (with smartphones recording video) their words are sure to get out to anyone who wants to hear them.

I'm thinking of Romney's 47 percent remark, which a quick Google shows is still around (as he's apparently a suspected candidate for 2016):
http://www.motherjones.com/kevin-drum/2014/09/mitt-romney-takes-another-crack-explaining-47-percent

It seems technology is changing politics, in that it's harder to make comments to appease a specific group if another group of potential supporters are going to be turned off by those comments - regardless of what you say or where you say it, it's likely to get out to the general public.

Michael Wolfe said:

Just to be clear, Scalia is actually a critic of original intent, not a proponent of it. Scalia claims to adhere to original meaning.

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The distinction tends to be more important in libertarian circles - while I understand the argument, they tend to reduce to the same thing for me in practice. One simply cannot project oneself into the shoes of another time with any degree of certainty, whether they be of a common man or a constitutional framer. And claiming to do so is often a sneaking way of heading off a change one doesn't like.

But I think I understand what you're trying to say. Can you say more about why you think the two are equally susceptible?

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In my view, the Roberts court has morphed into a body that makes decisions based on ideology first and subsequently pretzels any precedent they can find to fit later. The conservative wing does that by claiming (reductively speaking) that we live in the same world as we did in 1783. The liberal wing disagrees.

There's a Slate article that expresses it better than I'm doing, but I'm not having any luck finding it at the moment. Will post it if I do.

raburrell said:

The distinction tends to be more important in libertarian circles - while I understand the argument, they tend to reduce to the same thing for me in practice.

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Same here. I can understand the semantic difference, but I'm having trouble imagining how they would would be different in practice.

Plot Device said:

I just don't see the context of that Slate article having very much bearing on what I was trying to say.

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yes, this is apparent.

That'll be the day ole Anthony can double-talk me into believing his twisted views.

As RG said: Bluntly, Scalia's doctrines seem to be a matter of convenience not principle.

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My original comment was: WTF?!! Because there's been so many "decisions" from this group that made me think to myself: "This is a travesty of justice"! and I keep thinking that.

A weirdly deformedly fluid confluence of Orwell, Kafka & Dostoevsky courtroom drama?

Sometimes I wonder what this dude does to himself upon the near occasion of possibly contemplating that there is such a thing as "NO RELIGION". I guess it must be really difficult for him to imagine.

raburrell said:

The distinction tends to be more important in libertarian circles - while I understand the argument, they tend to reduce to the same thing for me in practice. One simply cannot project oneself into the shoes of another time with any degree of certainty, whether they be of a common man or a constitutional framer. And claiming to do so is often a sneaking way of heading off a change one doesn't like.

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Not just in libertarian circles, unless Scalia and other originalists are all libertarians now.

But seriously, the distinction is a pretty significant one. (And actually most of the really venomous criticism of original intent comes from other originalists, not from realists or other schools of thought.)

But even if you still disagree, I think it's also important to accept the distinction in order to understand and criticize Scalia on his own terms. If Scalia doesn't focus on original intent, then those who criticize him for focusing on it are a bit off the money, right?

In my view, the Roberts court has morphed into a body that makes decisions based on ideology first and subsequently pretzels any precedent they can find to fit later. The conservative wing does that by claiming (reductively speaking) that we live in the same world as we did in 1783. The liberal wing disagrees.

There's a Slate article that expresses it better than I'm doing, but I'm not having any luck finding it at the moment. Will post it if I do.

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Sure, I think there's some validity there, but that doesn't really demonstrate that Scalia's philosophy is uniquely attached to that practice, more so than other ways of reading law. And if we're talking about precedent, then that argument becomes even trickier. Who tends to rely more on precedent: originalists, or non-originalists? It's the non-originalists, don't you think?

I'd be happy to take a look at the Slate article if you have any luck finding it.

Michael Wolfe said:

But seriously, the distinction is a pretty significant one.

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So what is it?

Michael Wolfe said:

But even if you still disagree, I think it's also important to accept the distinction in order to understand and criticize Scalia on his own terms. If Scalia doesn't focus on original intent, then those who criticize him for focusing on it are a bit off the money, right?

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The problem there is that I find Scalia's terms disingenuous, therefore I'm disinclined to start with his position. As others have said, he sticks to whatever happens to be convenient for him.

Sure, I think there's some validity there, but that doesn't really demonstrate that Scalia's philosophy is uniquely attached to that practice, more so than other ways of reading law. And if we're talking about precedent, then that argument becomes even trickier. Who tends to rely more on precedent: originalists, or non-originalists? It's the non-originalists, don't you think?

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In theory, this should be true - however, the court's current habit is to take up only the narrowest of cases, precedents are often raised as arguments to be addressed, and it gets pretty tricky.

I'd be happy to take a look at the Slate article if you have any luck finding it.

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I'll take another look in the morning.

kuwisdelu said:

So what is it?

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I could write about this at length, and there are a lot of different ways of looking at it, imo. This piece might be a good starting point.

The condensed version, as often expressed by original meaning supporters, is that it's the text of the law that governs, not the lawgiver. It can be important in part because there are situations where the two approaches would lead to different outcomes when deciding cases. It's also worth noting that more left-leaning originalists tend to emphasize intent much more consistently (Hugo Black and Akhil Reed Amar come to mind as examples).

raburrell said:

The problem there is that I find Scalia's terms disingenuous, therefore I'm disinclined to start with his position. As others have said, he sticks to whatever happens to be convenient for him.

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Well, what's an example of him using original intent when it's convenient?

blacbird said:

Scalia claims to focus on "original intent", and commonly expresses that claim in a way that suggests he has séances at which the Founding Fathers appear and share their thoughts. Somehow they always seem to agree with what he thought all along, and his decisions tend to get made accordingly.

caw

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When has he ever made that claim? If it's so common, should be pretty easy to find some examples, right?

Michael Wolfe said:

Well, what's an example of him using original intent when it's convenient?

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Lawyers Guns and Money did a good job of this in the post I linked a page or so back. It speaks of how he "climbs originalism's ladder". Schools can't be segregated (Brown vs BoE), but yet he balks at Affirmative Action. Etc. It's a short piece, so I can't really quote it, but it's a pretty good example of what you're asking, IMO.

eta: Here's another piece which seems to have inspired the first: Originalism's Ladder

The problem is that it's almost impossible to justify striking down affirmative action programs in "originalist" terms . . . . And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications. While it's not strictly accurate to say that you can't defend the Thomas/Scalia position on state racial classifications in “originalist” terms, you can do so only by defining constitutional principles at such a high level of abstraction that "originalism" is essentially devoid of content.

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raburrell said:

Lawyers Guns and Money did a good job of this in the post I linked a page or so back.

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I'm familiar with Lemieux and I enjoy him in general, but I think he and Scalia are talking past each other.

And his article highlights a real problem I see with (some) criticisms of Scalia. There are some really good criticisms, but Lemieux muddles them. He argues that Scalia's philosophy leads to some pretty grossly unjust outcomes (and I agree). But then he's complaining that Scalia wouldn't have dissented in Brown. And he begins that section by writing:

If we accept that the expectations of the framers and ratifiers have some relevance, then Scalia runs into a different problem:

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But he doesn't show that Scalia is accepting that.

I guess I see a general problem in these kinds of discussions, where the validity of specific criticisms is hard to separate from whether someone likes or dislikes someone like Scalia. If you like him, you have to be careful to recognize that he's not always correct, and if you dislike him, you have to realize that not every criticism is right just because it's Scalia.

Actually I quite enjoyed the effect of his comments on the Windsor decision.

Perhaps not what he intended, but...

Scalia really bothers me on LGBT issues. The Windsor opinion was pretty bad, though maybe I should give him some credit for using the phrase "legalistic argle-bargle."

Williebee said:

My bit of exaggeration wasn't trying to make the point this post is trying to turn it into, obviously.

But this does help to point out the absurdity of the idea of a non-"morphing" constitution.

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Well no, it doesn't. Again, where does Scalia indicate that the 13th is invalid somehow?

Non-morphing, in Scalia's sense, doesn't equate to non-changing. The Constitution can absolutely be changed from his perspective (and really he thinks it should imo):

In a televised conversation at the National Press Club on Thursday, Justices Antonin Scalia and Ruth Bader Ginsburg were asked what amendment they would make to the Constitution if given the opportunity. Scalia said he would amend the amendment provision to make amendments easier. Ginsburg said she would add the equal rights amendment.

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This isn't a tough thing to process. Scalia--and others, to be sure--doesn't think the Constitution should be manipulated as is in order to derive some justification for a law or some right. But it can most assuredly be changed when necessary.

Is he 100% consistent in this regard? Not in my opinion. But he's a better jurist--by and large--then most of the Court.

That said, I'd like to see him step down now (along with a few others on the Court).