Scalia Offers More Fertilizer Views On Courts & Jurisprudence
Scalia Speech Critical of 'Judge-Moralist' Era
What the hell does Scalia think judges have been doing over the centuries of jurisprudence? In Salem, Massachusetts, the local colonial court heard a case in the late 1600s that involved a complaint by a wife about the lack of sexual activity, sexual interest and committment to the marriage by her husband, a farmer living in what is now known as Danvers. Divorce courts hear issues of morality, sexuality, reproduction and other intimacies. Fammily courts hear matters of abuse, victimization, incest, sodomy, molestation... Civil courts hear cases that involve breach of conduct, promise and basic morality... Criminal courts hear matters that pertain to the ultimate morality: that of the basic rights of individuals, community, state, nation and international status.
If these are not moral issues that judges are competent and qualified to deal with, what the hell are they teaching in law school? Does Scalia now advocate the irradication of the courts and the development of a council system, similar to the "majlis" approach used by tribal Arabs and noamdic peoples in the Middle East?
Morality and legality is not merely based on the views or judgment of the people. We are a nation of laws because the judgment of people is often tainted with ignorance, bias, prejudice or lacking fact. The very basis of our adversarial system is designed to allow both sides of an argument, event or action to present facts, testimony, expertise and allow either a judge or a jury to decide the case according to the facts, the law and principles of justice (a form of universal morality, if you will). But our system has lost its moral compass and principles of justice are no longer part of the courts... or at least according to the views recently expressed by Justice Scalia.
I cannot be sure, but I think Scalia's age is beginning to cloud his judgment and thinking... Or at least he is losing his judicial temperment and restraint.
Which is exactly why we have precedents to guide us, a Constitution to keep us from going astray and due process to make sure we employ a specific and consistent method. For an ultra-conservative to make a statement like this about sexual orgies and yet to be opposed to the inherent right for a person to keep all medical decisions private and completely confidential (i.e. as provided in a limited fashion in Roe v. Wade) shows his hypocrisy and lack of consistency in his logic and ideology. If Scalia can argue that judges have no qualifications to judge issues involving sexuality, what, then, gives the court any right, authority or qualifications to make any decisions.
Would we than have to wait for a constitutional amendment for segregation and fulfillment of the promise of the Declaration of Independence, the US Constitution and the Universal Declaration of Human Rights. Would he advocate a constitutional amendment to resolve the fundamental right of consenting adults to freely associate and engage in any form of intimacy? Are we to subject all moral questions to polls, elections and the court of public opinion? What happens when public opionion decides it is "lawful" to assasinate public officials that speak out against issues? What happens when public opinion decides that one religion is better, more just or more in line with God's will than any other?
Our forefathers and the framers of our Constitution recognized the following realities:
1. Government will always gravitate toward power and violation of inherent rights and there needs to be a system of checks and balances to preserve liberty.
2. The majority can become tyrants of will, whim and opinion and principles of law and justice need to be in place to preserve liberty.
3. There are just, universal principles that can be shared in a pluralistic society and these are the principles embodied in our Constitution.
4. There is subordination of rights and principles stemming from the individual, to the family, to the community, to the state and then to the nation... but the right of the individual is sacrosanct absent of a compelling reason and interest for the social groups of a society to intervene.
Where does the public derive those rights? The use of the term "derive" is correct in this case. The rights of the indivdual are inherent, but the rights of the family, the community, the state and the nation are derived from the consent of the individuals comprising the body politic. Absent of a compelling interest or reason, probable cause, or inherent principle, there is no "public right" to set policy, regulation or law.
Scalia wouldn't recognize principles of "strict constructionism" if they were to jump up and bite him. His own version of activism is in play and, because he can say anything he wants without fear of reprisal or political pressure, he can be as outrageous and idiotic as he wants. All the more is they pity because he is considered an influential jurist and legal scholar. Let us hope he never decides to quit the bench and teach at a law school.
Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.
What the hell does Scalia think judges have been doing over the centuries of jurisprudence? In Salem, Massachusetts, the local colonial court heard a case in the late 1600s that involved a complaint by a wife about the lack of sexual activity, sexual interest and committment to the marriage by her husband, a farmer living in what is now known as Danvers. Divorce courts hear issues of morality, sexuality, reproduction and other intimacies. Fammily courts hear matters of abuse, victimization, incest, sodomy, molestation... Civil courts hear cases that involve breach of conduct, promise and basic morality... Criminal courts hear matters that pertain to the ultimate morality: that of the basic rights of individuals, community, state, nation and international status.
If these are not moral issues that judges are competent and qualified to deal with, what the hell are they teaching in law school? Does Scalia now advocate the irradication of the courts and the development of a council system, similar to the "majlis" approach used by tribal Arabs and noamdic peoples in the Middle East?
"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.
Morality and legality is not merely based on the views or judgment of the people. We are a nation of laws because the judgment of people is often tainted with ignorance, bias, prejudice or lacking fact. The very basis of our adversarial system is designed to allow both sides of an argument, event or action to present facts, testimony, expertise and allow either a judge or a jury to decide the case according to the facts, the law and principles of justice (a form of universal morality, if you will). But our system has lost its moral compass and principles of justice are no longer part of the courts... or at least according to the views recently expressed by Justice Scalia.
The 70-year-old justice said the public, through elected legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.
I cannot be sure, but I think Scalia's age is beginning to cloud his judgment and thinking... Or at least he is losing his judicial temperment and restraint.
Scalia decried his own Court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.
Which is exactly why we have precedents to guide us, a Constitution to keep us from going astray and due process to make sure we employ a specific and consistent method. For an ultra-conservative to make a statement like this about sexual orgies and yet to be opposed to the inherent right for a person to keep all medical decisions private and completely confidential (i.e. as provided in a limited fashion in Roe v. Wade) shows his hypocrisy and lack of consistency in his logic and ideology. If Scalia can argue that judges have no qualifications to judge issues involving sexuality, what, then, gives the court any right, authority or qualifications to make any decisions.
He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.
Would we than have to wait for a constitutional amendment for segregation and fulfillment of the promise of the Declaration of Independence, the US Constitution and the Universal Declaration of Human Rights. Would he advocate a constitutional amendment to resolve the fundamental right of consenting adults to freely associate and engage in any form of intimacy? Are we to subject all moral questions to polls, elections and the court of public opinion? What happens when public opionion decides it is "lawful" to assasinate public officials that speak out against issues? What happens when public opinion decides that one religion is better, more just or more in line with God's will than any other?
Our forefathers and the framers of our Constitution recognized the following realities:
1. Government will always gravitate toward power and violation of inherent rights and there needs to be a system of checks and balances to preserve liberty.
2. The majority can become tyrants of will, whim and opinion and principles of law and justice need to be in place to preserve liberty.
3. There are just, universal principles that can be shared in a pluralistic society and these are the principles embodied in our Constitution.
4. There is subordination of rights and principles stemming from the individual, to the family, to the community, to the state and then to the nation... but the right of the individual is sacrosanct absent of a compelling reason and interest for the social groups of a society to intervene.
"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.
Where does the public derive those rights? The use of the term "derive" is correct in this case. The rights of the indivdual are inherent, but the rights of the family, the community, the state and the nation are derived from the consent of the individuals comprising the body politic. Absent of a compelling interest or reason, probable cause, or inherent principle, there is no "public right" to set policy, regulation or law.
Scalia has made similar, if less strident, comments during past public appearances. The jurist, well-known as a strict constructionist in his interpretation of the Constitution, opened his remarks by saying, "I brought three speeches, and I decided to give the most provocative one, because this seems to be too happy a crowd."
Scalia wouldn't recognize principles of "strict constructionism" if they were to jump up and bite him. His own version of activism is in play and, because he can say anything he wants without fear of reprisal or political pressure, he can be as outrageous and idiotic as he wants. All the more is they pity because he is considered an influential jurist and legal scholar. Let us hope he never decides to quit the bench and teach at a law school.
posted by Jim Downey at 9:23 PM
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