While the legal profession debates the propriety of his decision to participate in the educational sessions for conservative new members of Congress, Associate Justice Antonin Scalia is also causing a stir over his public statement that the 14th Amendment does not prohibit discrimination against women or gays.
Scalia’s statement came in an interview with California Lawyer magazine. Scalia stated “You know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
Once again, this statement is not a violation of judicial ethics but rather a violation of a core principle of judicial self-restraint. In the past, justices avoided public appearances beyond occasional law school commencements and ceremonial appearances. That was before the advent of the celebrity justice where members increasingly appear in high profile events. I take a highly conservative view of such appearances. I believe it undermines the integrity of the court for justices to be holding forth on their personal views in interviews and conferences. They are given one of nine unique positions that require a degree personal discipline in public appearance and, yes, insularity. As noted in this column, I admired John Paul Stevens for his practice of having his opinions speak for themselves. Scalia has helped inspire a new model of the celebrity justice that appears to appeal to many of his colleagues. These interviews and speeches tend to be self-aggrandizing exercises and not only do not do justice to the Court but to Scalia himself. He is certainly not alone in yielding to the temptation to appear in public. Both liberal and conservative justices have increasingly made controversial appearances.
Scalia’s views on gender discrimination are well-known. However, such arguments should be precedent not personality driven. Scalia is rightfully viewed as an intellectual leader of the conservative wing of the Court. If there is anyone who could allow his opinions to speak well for himself, it is Justice Scalia. He clearly enjoys exchanges with students and lawyers. He is also one of the most entertaining and dynamic members of the Court. I truly like that about him. However, this is a job that requires the small sacrifice in one’s public persona. Scalia’s legacy would be better served with less of the justice in the public arena.
Source: Politics Daily
Jonathan Turley
Maybe I wasn’t clear either.
Arguing over the meaning of “all” is like arguing over the meaning of “is”, Bill Clinton. Something either “is” or it “is not”. “All” has only one relevant meaning and no court in the world can wiggle out of it without some severe linguistic gymnastics and tortured logic. Either a set is “all” or it is not, it is by definition a subset. Period.
And if the not too bright barb stung, then there you have it.
True to form. Buddha is Laughing makes ad hominem attacks: “If you [mahtso] want to back that asshat Scalia, that’s your business, but you’re not too bright if you think there is wiggle room on the meaning of “all”.” (I see it as a two-fer – Justice Scalia and me.)
Did I miss it, or did you not address my questions as to your interpretation of the 1st A? And those 17 year-olds?
Maybe I’m not too bright, because I thought I was clear: it is not how the dictionary defines “all” that is at issue; what is at issue is my assertion that the courts do not always rely on dictionary definitions when construing statutes. I started to type out an example, but given your level of discourse, I see no reason to. For those who care, see, for example, the Arizona Downs case (637 P.2d 1053) as to what the word “shall” means in Arizona’s statutes. And I believe cases cited by others in this thread also show that dictionary definitions are not necessarily what will be used by the courts.
BBB,
Well said.
Mike,
I think one of our biggest problems of today is that all things accepted by those in power (“the authorities”) are legitimized because the people, in a representative public are without power to prevent it. The remedy is supposed to be a change, by election, of those authorities. Unfortunately, “the authorities” just get new faces.
“Oh wait. First prove the 14th was legally approved.”
Tootie,
The proof is that the 14th amendment has been accepted by most authorities as a legitimate amendment since its’ adoption. Surely you should understand that since the only way to prove that George W. Bush was a legitimately elected President is by the fact that he was accepted as such.
Gyges,
I’m sorry I didn’t get back to you last night. I was blogged/blawged-out.
If I understand you correctly; you want to know why there is an exception to the abridgment of free speech, but not one to the hypothetical prohibition to discrimination based on gender.
In the legal world there seems to be an exception to every rule. Court rules provide an excellent example. Nothing is set in stone as long as someone can present an argument persuasive enough to get the judge to accept it. That’s why we have appeals, and why we make the decisions of the highest court controlling. Humans create the laws/rules and we humans are flawed. Sometimes, somebody figures out a good reason to have an exception to the rule.
I would prefer to have exceptions to the rules set out in the Constitution be remedied by amendment. The Court has, at times, decided that an amendment is not needed. I don’t agree, but the majority have come to accept it, so it is what it is. For the most part, it has been an instrument of good.
I will concede that the hypothetical prohibition would likely be subject to exception, but that isn’t how I designed it. Maybe that’s why the Fourteenth Amendment didn’t create a prohibition.
Lotta to Dr. H,
“Sarcasm is tricky in print …’
==========================================
Tell me about it …
mr. ed,
Usually I am “dropped” off at the door however … I have a few chums that park elsewhere. I will make inquiries and send him greetings!
Do you put on your redcoat at the Playhouse?
‘Tain’t as sarcastic if it is identified as sarcastic; said sarcastically [sarcasm] 🙂 [double negative?] [ ;-( ]?
Blouise,
If you’re parking Friday AM at Cedar Hill Baptist Church to take the free shuttle to concert, say Howdy to my parka-clad buddy, Willie Brown, with whom I usher Thursday nights. Fine, retired (Nela Park) gent, quick to laugh. Proud to have him as my boss. Loved by all.
He’ll tell what kind of rotten swine I am.
Edward, Duke of Woolworth COD, CRS
Dr. H.: “…the book cannot be wrong” is plausibly the upper limit of my sarcastic humour attainment to date.”
—
It was cool, I got it. Sarcasm is tricky in print so many people puncuate it with “[sarcasm]” before or after the statement or a 🙂 A smiley is: colon or semi-colon/no space/dash/no space/close parentheses.
WordPress makes a lousy equation editor, it deletes needed spaces, correcting a mistake I did not make. \
For most of my life, people have sometimes corrected mistakes I did not make.
Not a new experience for me.
Try another way to edit an equation, to see whether WordPress will outsmart me again, or not…
Let “F” be the force vector.
Let “A” be the acceleration vector.
Then:
“F” = m*”A”
Wonder if I found a way to symbolize a vector equation?
Learn and live, here goes…
How do I simulate an equation editor here?
Suppose I try to put forth the vector equation…
_ _
F = m*a
The overline indicates that the force and the acceleration are vectors, and that vector equation is applicable to, and only to non-deformable bodies.
If the body is deformable and the force distributed, we are in the realm of tensors.
I am all for a good joke, yes I am.
To seriously suggest that someone who does attempts to teach me the ways of algebraic physics knows more about physics than I know of law, process of law, and procedure of law, would be something akin to the best joke I ever heard…
I just love stupendous jokes. Amen.
Either way, joke or not, what you write I find of great help to me in my work.
Muchas gracias. Danke schön.
Some hands get tipped.
And shamefully so.
Bob,Esq:
Not word one about “innocent until proven guilty” either in that old parchment. Obviously a liberal trick perpetrated on the good, stoic, conservative folk of colonial America.
Bob Esq.,
It the enjoinment of other branches of government that I find to be ultra vires.
“judicial review is nowhere to be found within the constitution”
I know that, but it definately was something that Congress could grant under Article I, Section 8.
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
If Comstock, A System of Natural Philosophy is too recent to have collected the authority of the ages, I can do a little better. I have the replica printing of the first, three-volume edition of the Encyclopedia Britannica (pardon my mis-spelling.)
Not only do I have on hand that edition, but the purportedly most scholarly encyclopedia ever, the Britannica Eleventh Edition, which I inherited from my mother who inherited it from her Morningside College History professor uncle, Charles Faust.
I am a student of the methods of Sun Tzu, and have on my desk the R.L. Wing version of “The Art of Strategy,” Broadway Books, New York, 1988, published in paperback in 2000. In my search for ways of improving public safety as a bioengineer, I make use of every form of strategy, including game strategy (Remember John Nash and his Economics Prize?).
So, the strategy I have briefly explored is role-reversal, to see who can make my arguments better than I can by making tragicomic versions of traditional legal arguments as parody.
When I began with, simple to me, scientific arguments, I met with sometimey astonishing results. So, using what I know of psychoanalytic methods, I set about with a role reversal fork gambit, and, sure enough, others are making my arguments for me.
Sorry about that, to be ethical as an engineer, I had to use subtle enough humor to get useful research results while planting sufficient evidence as would, if needed, corroborate my intentions of genuine decency in the midst of what I continue to experience as a devastating aspect of the state of human society.
My motive and intent are simple. I have not misrepresented anything, once one sorts out what is said as cynical counter-argument. My maternal grandmother’s picture really is deemed by others skilled at recognizing the facial features of “black people” as a black person. I have never explored the research value of the court jester role before, and I made it as clear as I could imagine doing that such has been what I have been doing.
My wife and I adopted an eleven year old boy, Michael, who we were told needed a home. The agency, the oldest in Illinois, did a very protracted home study, which my wife and I passed without difficulty; my being autistic was not a problem for the agency, even though I never talked about it directly with the agency.
Few couples ever go through such intense scrutiny as we did, it was a group process and not every couple was deemed fit to be adoptive parents.
The agency set a condition for our adopting Michael, that he could visit his two brothers who bracketed him in age. I regarded that as posing serious risk for Michael, and my regard became validated when the State of Illinois put the older brother back with his biological parents. We were told that Michael was in need of being adopted because of chronic neglect from his alcoholic parents.
While adoption records are supposed to be confidential, the attorney our late son’s mother-in-law hired dumped the confidential information into the public record in ways I thought utterly unethical. So, the confidential information became public information.
Why did the Ford Motor Company not weld the car properly? Same reason as caused the sinking of the Deepwater Horizon vessel? Laws which mandate profit before safety for corporations unless the safety issue is blatantly manifestly unavoidable?
The system of laws in the U.S. acted in such a way as to do horrific damage to my close family. Why that happened and what people might learn to usefully do differently, in ways more truthful and decent than are now possible is what drives my effort.
I forgive everyone and every belief that led to that horrific damage, I seek no compensation, no justice for past events. Yet, in conscience, I cannot abandon the possibility that, though compounded personal and family tragedies, I may yet be able to share something useful of the respectful decency in which it has been given me to live.
Along the way, some comments were made which I recall were to the effect that, if everyone were honest, as I suggest we might usefully become, we would not need laws. I find such a notion biologically absurd.
Having no laws is the terrible anarchy of permissiveness which was so dreadfully awful that laws were made, and, for a time the laws seemed to work, Indeed, they first seemed to work so well that, as though laws are intrinsically and extrinsically actual productivity and value such that, the more laws we have, the wealthier and more productive we become. That makes a great mantra, but one rejected by the libertarian camp.
Make enough laws, and they combine to form a coupled system of coupled systems, the coupling coefficients of which become unfathomably trans-computational. That is where we seem to have arrived, a system of laws which may have become a temple as poetically described by Justice Robert Jackson in the 1940s, a temple of law with so many added stories that it cannot fail to collapse.
Such collapse would mimic the mode of failure of all revolutions, driving us back to the tyranny of permissiveness, which is no less tyrannical than authoritarianism is.
There is a practical alternative, which is how I live and the method, which I have been working at learning whether I may be allowed to share it here, is authoritative-reciprocal, which is bereft of permissiveness as it is bereft of authoritarianism.
I seek to abate the system of law that crushed to death Giles Corey, who, seeking the mercy of sooner death, cried out, “More weight.”
The dismay of the rabble (which includes me) about the present political situation portends of another violent revolution, if we, the people, decide to keep the vicious cycle of either permissive or authoritarian going.
And, having had my colon removed to prevent colon cancer, I assure you all that I am far less full of fertilizer (there is that objectionable f-word again), than almost all other people with their colons intact are. They good physicians and surgeons didn’t even leave me a semicolon, just a rectal stump and an ileo-rectal anastomosis. Often, one meal has gone through and out before it is time for the next meal.
So, when I am told that I am full of f-word, I skeptically challenge the validity of what I am told.
If I am authoritatively informed that I belong not here, I will gladly find another sandbox for my playing advanced-sandbox and see who will play the sandbox game of decency and kindness within authoritative reciprocity with me.
At the Carleton reunion in 1991, one of my classmates who was also a freshman on third Davis commented to ma about the bull-sessions other men on the floor had regarding me. I had opted for a single room so my being autistic would not trouble someone not able to live comfortably as a roommate. What my classmate said was that the other men on the floor, after many bull-sessions, finally concluded that I was some sort of genius beyond what they had thought possible.
I seek to invest whatever talent I have toward the safety of us, our children and their children, ad infinitum, to such extent as I may so do. For my daughter, for your sons and daughters, I am willing to surrender (but not, in the traditional sense, sacrifice) my life that they may be better able to live in a world actually safe.
Except as the hurts are fatal, hurting people does not make for fewer hurting people.
BBB,
Just like the incorporation doctrine, judicial review is nowhere to be found within the constitution.
The point is to illustrate the flaw in Scalia’s thought process.
Brian,
Then you should be reading Newton. F=ma is the expression of the Newton’s Second Law of Motion. It is verifiable through repeatable experimentation. When it comes to physics, Newton was not only an expert, he literally wrote the book. As an engineer, you should know this without having to resort to outdated astronomy texts.
There is a difference between “skeptical” and “nonsensical”.