Justice Scalia’s Legal Precedent
From an article on Mr. Justice Scalia in today’s New York Times:
[A]t the argument in a big voting rights case, Justice Scalia seemed to violate his rule against citing foreign law. Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”
It was as an offhand reference to an ancient court, and Justice Scalia was not announcing a universal principle. Indeed, he almost certainly does not think that every unanimous legislative act is problematic.
In 1986, for instance, the Senate approved Justice Scalia’s nomination to the Supreme Court by a vote of 98 to 0.
on May 12th, 2009 at 8:40 am
Yikes! With all due respect to Justice Scalia, what would his opinion be on the Universal Principals upon which this Nation was founded, the self- evident Truths that ALL Men are created equal, endowed by their Creator with certain unalianable Rights, that among these Rights are the Right to Life, Liberty, and the Pursuit of Happiness, Liberty and the Pursuit of Happiness being dependent on the Right to Life to begin with? If you do not understand these Universal Principals to begin with, how can Liberty and Justice prevail?
on May 12th, 2009 at 12:57 pm
In his scholarship, Justice Scalia, I beleive, has said the unaiienable rights the framers spoke of were living (i.e. walking around) persons and not in the sense right to life people bel;eive.
It would be nice in discussing legal issues and the forthcoming Supreme Court nomination, scholarship would play some role.
*For example, what does our president mean by “empathy” as a key characteristic of a nominee?
Also, about the process, did we understand how adversarial confirmation has become since Brown, as Stephen L. Carter pointed out in his NYT Sunday op-ed) and that maybe we should think carefully about how we look at the process beyong mere ideology.
on May 12th, 2009 at 1:12 pm
In fairness to Scalia, though, his remark about the Israeli rule was obviously just a joke, and moreover what he objects to is treating foreign law (from certain European countries) as if it sheds light on how to interpret the U.S. Constitution, which is quite a different question.
on May 12th, 2009 at 4:10 pm
Don’t forget, Nancy, that the so-called Universal Principles were not so universally accepted at the time the Declaration of Independence was written. “All men” meant all white men. Period. Black men were not counted but (I think) at about 75% of a white man, and the equal part didn’t apply at all.
Inclusivity of women in a generic “men” was neither implied, intended nor established.
It wasn’t until the year 1780 that such wording was used to successfully argue against slavery in a court of law ( Brom and Bett vs. Ashley). Nonetheless, slavery lasted as a legal institution until the passage of the 13th amendment to the US Constitution in 1865. The Civil Rights Act wasn’t passed until 1965.
National women’s suffrage did not come until the 19th amendment to the US Constitution was ratified in 1920.
As a strict constructionist and “original intentionalist,” Scalia may not have been so open to the ” liberal activism” that resulted in the 13th and 19th amendment and Civil Rights Act if he had been on the SCOTUS in those times.
One of his predecessors, Chief Justice Roger Brooke Taney, a practicing Catholic, presided over the infamous Dred Scott decision (1857) that ruled that people of African descent imported into the United States and held as slaves, or their descendants —whether or not they were slaves—were not legal persons and could never be citizens of the United States.
on May 12th, 2009 at 5:31 pm
Jimmy Mac writes:
“One of his predecessors, Chief Justice Roger Brooke Taney, a practicing Catholic, presided over the infamous Dred Scott decision (1857) that ruled that people of African descent imported into the United States and held as slaves, or their descendants —whether or not they were slaves—were not legal persons and could never be citizens of the United States”.
You left out the part: “according to the laws of this country”. It was why the 13th Amendment was necessary.
There is much effort made to pretend that the U.S. as founded was founded on the Declaration. It was not. It was founded on Constitution, which allowed 20 more years of slave trading, and counted black as 2/3rds of a person, for purposes of representation. They could not vote. [No Indians allowed].
It was Taney who opposed – at great risk – Father Abraham’s abrogation of habeas corpus.
on May 12th, 2009 at 8:32 pm
As a strict constructionist and “original intentionalist,” Scalia may not have been so open to the ” liberal activism” that resulted in the 13th and 19th amendment and Civil Rights Act if he had been on the SCOTUS in those times.
That doesn’t make much sense, I’m afraid. Scalia has repeatedly pointed out that his judicial philosophy cannot accurately be described either as “strict construction” or as “original intent,” and the 13th and 19th Amendments weren’t ratified by the Supreme Court in any event.
on May 12th, 2009 at 10:29 pm
With all due respect, Gabriel, the Constitution is based on the Divine Nature of Natural Law:
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and The Pursuit of Happiness-that to SECURE these Rights, GOVERNMENTS are instituted by Men…”
Liberty requires that no man be enslaved for slavery is not compatible with Liberty. It was compromise that led to the continued acceptance of slavery. Imagine where we would be today had we not compromised our Fundamental, Universal, Principles, from the beginning.
on May 13th, 2009 at 8:17 am
It was that same compromise that led to our inability to affirm the Humanity of the Native Americans as well as the need to affirm Civil Rights and Woman’s Suffrage through Amendments, despite the fact, that the truth of these unalienable Rights was always there to begin with. We are the authors of our own Human History. In a plauralistic society, there can be no compromise on these unalienable Rights because these unalienable Rights are Universal.
on May 13th, 2009 at 12:30 pm
“Isn’t what Ave Maria is trying to do similar to what the pilgrims did? Maybe there’s something positive about it that we’re overlooking.”
Nancy –
We would not be the United States. The anti-abolitionists did not have a majority. They did not have the votes. But they persisted and eventually the defect in the Constitution was made right by *persuasion*..
Those of us who are pro-life but think we have to compromise think the same way as the anti-abolitionists — half a loaf is better than none when the ONLY CHOICE at the moment is between nothing at all and half a loaf. We don’t have the votes, Nancy, and we’re not going to get them untill those who think differently are *persuaded* that abortion is wrong.
on May 13th, 2009 at 12:32 pm
Oops — my computer memory didn’t work. I was responding to this in Nancy’s post:
“Imagine where we would be today had we not compromised our Fundamental, Universal, Principles, from the beginning.”
on May 14th, 2009 at 8:06 am
It appears that some of the votes we do not have are from fellow Catholic Americans.
“To whom much has been given, much will be expected.”