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No Catholic vote here...

Arguably the most identifiably Catholic (for the wrong reasons, many would argue) justice on the Supreme Court is Antonin Scalia, and he spoke to Tim Russert in an MSNBC interview Sunday about the impact of his faith on his jurisprudence. It ain't much, apparently, and ought to beenough to get him tossed out off any self-respecting Catholic campus. No?

RUSSERT: And we are back talking to Antonin Scalia, justice of the Supreme Court. Hes co-author of his new book, Making Your Case: The Art of Persuading Judges.

You went to Villanova University in Philadelphia recently and said theres no such thing as a Catholic judge. You happen to be Catholic. Explain why theres no such thing as a Catholic judge.

SCALIA: The same reason theres no such thing as ayou know, in my estimation, no such thing as a female judge. I mean, a good judge is a good judge. And at least if you have my judicial philosophy, which is to give the fairest possible meaning to the text that youre dealing with. And when youre dealing with the Constitution, you ask the question, what did it mean when the people adopted it? And once you find that, the case is done. How does my religion have anything to do with what those words mean and what they were understood to mean by the people who ratified them? Obviously nothing at all. So the onlyI may have said that at Villanova the only part of my faith that has any play in my judicial enterprise is whatever commandment it issixthThou Shalt Not Lie.

[Snip]

RUSSERT: You describe yourself as an originalist.

SCALIA: Originalist.

RUSSERT: Which means?

SCALIA: Which means I give the Constitution its original meaning. And what it prohibited then it prohibits now. And what it permitted then it permitted now. So, you know, for example, the death penalty. If youre an originalist, the issue of whether the death penalty is unconstitutional is really a non-issue.

RUSSERT: Why?

SCALIA: Because it isit wasit was the only penalty for a felony at the time the Constitution was adopted. Nobody ever thought that the Constitution branded the death penalty as cruel and unusual punishment. It just didnt.

RUSSERT: Is it different for Catholic legislators when the church will say you should not be voting for abortion rights, or the church feels this way on the issue of stem-cell research or the death penalty than it is for a Catholic judge?

SCALIA: It may well be. Ive always been happy that Im a judge. And all I have to do is look at the law. What does it say? Tell the truth about what it says, and thats my job. It would be harder for me as a legislator.

I didn't realize the bench was a zone of amorality. Makes it easier to sleepat night.

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An interesting discussion. I am reminded of the debate among some Catholic philosophers concerning the issue of whether there is such a thing as a 'Catholic' philosophy'. Gilson argued that there was and as a historian identified it. Many other said there is not.Similarly is there a way of reading history that is uniquely Catholic. I believe that it was Levinas who said that ALL human history is sacred history. How do we read the world? Through what lens.FWIW, I tend to think that there is a Catholic consciousness and not all who profess adherence necessaily possess that consciousness but once given it informs all.

David:It seems to me that you are begging most of the central issues by implying that Scalia's position is amoral. I remember back in the mid-1970s, in the Nixon-Watergate mess, the claim was often made that "We are a nation of laws, not of men," and this was taken as a point of pride. I took this to mean that there are laws that bind all, including the law-makers, that there were given, constituted parameters within which office-holders are bound to operate, and that it is not up to them to decide these issues on personal or group grounds. If I should have a case in court, or perhaps especially if I should have a case brought against me in court, should I have to worry that the judge is Protestant or Jewish or Muslim or atheist? Or should I be able to count on the judge's reading the law as written, impartially, and reaching a decision on the merits of the case? Personally, I think that Scalia's position is unself-critical in that it seems to presume that the exegesis of original intent can go on with the objective inevitability of the measurement of temperature by a thermometer. In Bernard Lonergan's phrase, objectivity is the fruit of authentic subjectivity. But that need not alter the judgment, e.g., that, according to the Constitution, the death penalty does not constitute cruel and unusual punishment. I really don't understand the argument that Catholic justices ought to conclude, because they are Catholic, that the Constitution forbids the death penalty. Should the five justices decide to overturn Roe v. Wade because they're Catholics? Judges are not legislators. I like the fact that there are justices who believe that their role is to interpret and to decide in the light of stated law--or Constitution.

Sounds good but Scalia did not look that honest when he handed Florida over to W Bush in 2000. The story goes that his wife was waiting with a celebratory cocktail when he arrived home. He is so competent that 673 lawyers filed a protest over his injunction to to stop the recount saying it would hurt George Bush. This may have been the worst moment in Supreme Court history and Scalia should be praised? His best response to the outrage was: "Get over it."Finally, as far as the constitution is concerned there is enough leeway in the history and the constitution to justify differing positions. But the vote in 2000 said it all. So much for the law.

Joe K: I get your point, and my starting point was a tweak at those (largely) conservative Catholics who trumpet justices like Scalia et al as the cure for what ails the country and a reason to vote for a Republican. Scalia (and he has made similar remarks in the past, though until he had a book to sell he would go ballistic on any journalistic caught trying to tape his speeches) would seem to be a pro-lifer's nightmare, not dream. He has said that even if Roe v. Wade was overturned, states should be free to provide any access to abortion they like, up to whenever they like. And that gets to your point regarding interpretation. I think everything is interpretation, even the seeming purism of the originalist. This is the same argument with biblical exegesis, no? What did Jesus really mean? What would the Founders do? Because we are confronted with issues they did not imagine. Must we wait for a constitutional amendment banning slavery to say slavery is wrong? Originalists are just offering a different form of development. I am no legal scholar by any stretch (and many here can weigh in with erudition, please), but I always remember the opening line from a real scholar on the Constitution who told those of us writing on church-state issues that "The Constitution is whatever the Supreme Court says it is." And history seems to have shown that to be the case. Esp on church-state issues. (Is Santa a religious or secular figure?)If you come before a judge with a case of civil or criminal law, the judge's religious and moral framework should in fact not matter. But when it comes to constittuional law, perhaps it should, and it certainly does. Hence black justices (Clarence Thomas being the exception who proves the rule) bring an appreciation of civil rights to the bench. If owmen justices are not important, why appoint them? Scalia is being disingenuous, I think. SCOTUS justices are political appointees, and political animals. He was, they all are. That's fine, actually. And Constitutional arguments are all about interpretation. "Cruel and unusual"? Because we did something 250 years ago, does that make it okay by today's moral standards? Or, as Benedict said when reinstituting the Latin Mass, "What was once holy in the church is always holy." Well, that's another topic...

What about Roe v. Wade? Should Church teaching on abortion settle that case in the SCOTUS?The analogy with the Scriptures is apt. But the twenty-seven books of the New Testament, the black marks on white paper that constitute letters, words, sentences, paragraphs, etc. remain what they are, and interpretation is always of them, not of something else. One may conclude, for example, that slavery ought to be prohibited and elininated, but it could not be because St. Paul thought so. He didn't. Perhaps the question is: How elastic is the Constitution? If it's infinitely elastic, then it's no longer a Constitution; it has no authority over-and-against statutory law. I think that is a big difference. Maybe we don't need a Constitution, but if we've got one, and want one, how ought it to differ from statutory law? Should it be as easy to change as the latter? I don't think that because people 250 years ago thought something was permitted that this means that "by today's moral standards," or perhaps more justly: "by the moral standards of some today," the death penalty should be retained. But that's what we have legislatures for. Would you be willing to put the Bill of Rights up for decision "by today's moral standards," say, by popular referendum? Would you want papal teaching on the matter to decide how far freedom of speech or the press should be carried?

David,It is not about amorality, but roles. Justice Scalia is simply identifying his role as a judge. His primary purpose is to interpret the law, not to make it. That was his point in distinguishing his role from a legislator's.I oppose the death penalty myself, but his interpretation of the eighth amendment is spot on. His point has nothing to do with whether the death penalty is right or worng morally, but that the constitution clearly contemplates its use, If capital punishment is to be eliminated it must be through the popularly elected branches - not judges. Even if you grant your point that we should use "today's moral standards," over 60% of Americans support the death penalty. Do judges have a special moral compass that lets them determine today's moral standards better than voters?

But when it comes to constittuional law, perhaps it should, and it certainly does. Hence black justices (Clarence Thomas being the exception who proves the rule) bring an appreciation of civil rights to the bench.You should read up a bit on that. Mark Tushnet's "Clarence Thomas's Black Nationalism," for example. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437381 Or Angela Onwuachi-Willig's "Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=638281

It is not about amorality, but roles.

Sean,I don't buy that. Why isn't it the role of Catholic elected officials to represent the will of their constituents (on abortion) rather than will of the Catholic Church? Why isn't it the role of Catholic doctors to abide by the Constitution and the rulings of the Supreme Court and perform abortions for women who ask for them? Why wasn't it a legitimate defense at Nuremberg to say, "We were only following orders"? I don't see how you can justify behavior merely by saying a person is playing a "role." It seems to me if you believe that the American way is a superior form of government, and that it is perfectly legitimate to have a secular government that assigns "roles" so that people with different belief systems can all live together in an orderly way, then you can legitimize the five Catholics on the Supreme Court allowing abortion to remain a constitutional right. But not just any role can justify making decisions that go against your own conscience, and it still seems to me no matter how legitimate the role is, there must be limits.As it now stands, you seem to accept the idea of "roles" for supreme court justice but not for anyone else, or at least not for anyone else when it comes to abortion. It seems perfectly reasonable to me that someone who really believes abortion is mass murder might say, "As a judge playing a role, I see nothing in the constitution prohibiting abortion, and indeed I see it as a constitutional right. But I cannot sit here and let my decision permit the continuation of all this killing. Consequently, I will resign rather than to let my decision--consistent though it is with my judicial philosophy and my reading of the constitution--make me complicit to a million plus killings a year."

the only part of my faith that has any play in my judicial enterprise is whatever commandment it issixthThou Shalt Not Lie.

Scalia doesn't even know the Ten Commandments!

Joe K et al: I don't think the Constitution is "infinitely elastic," nor should it be. On the other hand it does not answer every question, nor could it. I think the analogy to scripture continues to be apt. We can't change Holy Writ but we need to figure out how to adapt its tachings to new exigencies. Similarly, the Constitution didn't answer every question, but questions continue to arise. I think there's a peril in mixing apples and oranges. Roe v. Wade doesn't need a Catholic sensibility to get overturned, as it can be argued to have been a weak decision. But would you consider the third-trimester abortion of a healthy fetus killing a human being? If so, wouldn't you have to vote that such an act violates the Constitution? Or, moving to less superheated topics, what is the boundary on church-state separation as provided for by the Establishment Clause? The Constitution doesn't say, so justices have to tell us what they think. What about gun control, an issue currently awaiting a historic decision? What does the second amendment mean? That's a matter of interpretation. The ideology of originalism (as I'd see it, in jurisprudence as well as scripture studies--think the search for the historical Jesus) is also that it ignores precedent, or accepts only the precedents it likes. Again, the church analogy would be to the role played by tradition.

Does the idea of a judge merely playing a role apply in other countries? In the old Soviet Union and in Russia it may be the "role" of a judge to find dissidents mentally ill and lock them up. I think we are so thoroughly steeped in the idea of our constitutional democracy that we can't step outside it and objectively determine what a Catholic judge may and may not do. The "Faith and Freedom" readers old folks like me may remember from grade school were an integral part of our education back then to be as much American as we were Catholic.

Another point which might be addressed here: If one's faith or moral or ethical framework has no bearing on the law, why all the hullaballo from the right about getting "their" kind of judges on the bench? If they want "strict constructionists" or originalists in the Scalia mold, that's fine. They should focus on that. But they should also realize that brings no comfort on issues of gay marriage or abortion or much else if theirs is essentially a libertarian mindset. No?

Do judges have a special moral compass that lets them determine todays moral standards better than voters?

So the people, rather than judges, get to decide today's moral standards. But when certain issues are involved, Catholic legislators must go against the will of the people if they want to receive communion. So apparently the people aren't always the highest authority.

I think it would be helpful if folks defined what they mean by "justice" in our Court system nefore they talk about judges.Fr. Joe in recalling the nixon years understood the importance of impartyality.Maximum John Sirica was under intense pressure from the later criminal Mitchell and the Nixon office to uphold "executive priovlege" - a notion hardly enshrined in the originalist constitution.There was a sense of the role of the Republic and the fair governance thereof that operated.Today's paper brings news of McCain's promise to appoint strict constitutionalists, and the inproprities of Dr. Katz and pour whistleblower protector, Mr. Bloch -part of the GWB machine that seeks to stifle opposition to their ideology.Personally, I have no confidence in the "originalist" SCers to protect fairness, while those who support them seem to care about one issue only -which maybe they will or will not deliver on as discussed in other threads.

"The Constitution is whatever the Supreme Court says it is.But in fact, at any given moment, the Constitution is what the Supreme Court says it is. The statement is not a philosophical admonition, it is a recognition of the effect of a Supreme Court decision that concerns the Constitution, because a Supreme Court decision can only be reversed or modified by the Supreme Court.

A judge who says she/he decides cases according to the highest priciples of right and wrong rather than according to the law as written and understood, to the extent that its meaning can be known, is arrogating to her/himself the role of philosopher queen/king. Or so it seems to me.

David,Much to respond to and not enough time. A few points -Scalia believes - as almost all American jurists historically did - that judges must apply neutral principles in performing their role. Legislators are not supposed to apply neutral principles, but are to effectively enact policy. Why the difference? Legislators can be removed from office through periodic elections and they or their successors can change the law. They can and should consider the will of their electors, but they are not bound to. I can criticize a Catholic legislator because he is a free agent.The same is not true of a judge. If a judge doesn't employ neutral principles in performing his duties, he can become a tyrant. If Scalia exercises his power from a Catholic perspective, what's to stop a judge from using a Fascist perspective or a Satanist perspective, or whatever.I didn't say the voters are right in their moral judgments, but that they have the role of reflecting moral judgments in law - judges don't. This doesn't mean that a judge is off the hook morally - for example if a judge uses his authority to send people to the gulag under color of law, his is morally culpable for that. But that's not the kind of neutrality Scalia is talking about.

I totally agree with Joe Gannon, though I'd like to hear his view on the matter in the NYT about the lawyer trying to clear a man from prison after his client, now dead, had admitted to the rime the other was imprisoned for.What I tried to point up is that there are many ionfluences on judges in meting out justice including political, but also their own power and discretion to name a few.Being under the microscope of "high profile cases" can certainly pressure one at the bench and it's easy enough to say follow the law, but real life experience as well fiction and drama say not always so easy.Even to the highest courts where rings of protestors can easily surround a courthouse or words from appointing officials be they mayor, governor, or evn president cam come into play.As our justice system continues to evolve, e.g. determinate sentencing, 3 strikes and you're out,etc. what transpires will be inflyuenced not only by the moral;ty that the puiblic thinks justice should involve, settles legal prionciples, but also lots of political pressure and, I dare say, a good size dollop of political manipulation.

Sean,Are you then saying that a Catholic legislator must always vote the way the Catholic Church says he must vote, but a judge must never follow Church teachings (except insofar as they coincide with settled law)?

Interesting discussion, thanks for the comments. Let me attempt to re-frame here with a question:If judges are simply neutral arbiters of the Constitution, why do we get split decisions and differing opinions and so many changes down through the years? If it is all so clear, the plain sense of a thing, then why do Scalia and Ginsberg (among others) have diametrically opposed views on many issues?

In Germany during the Nazi period judges upheld the right of the state not to extend property rights to non-Jews.Following that experience, the world community developed (with the assistance and vision of Catholic philosopher Jacques Maritain) the Universal Declaration of Human Rights which is a 'constitution' of sorts for the world community.Yet, Scalia's philosophy would not permit utilizing developments beyond the text of the constitution in terms of interpretation.Also, he dismisses legislative discussion stating that the only important element is the final text. Yet examing the history of legislation is an important dimension in determining intent.Take for example, the issue of slavery. The reason that it was not placed in the constitution was because they would not been able to achieve consensus on this issue. Thus the abolutionists suggested that it be left out specifically and succeeeding generations could address the issue which was done post-civil war in the form of a constitutional amendment. But that amendment was hardly arrived at by dispassionate genteel reflection and dialogue!!! I think that this debate is similar to the debate around Modernism in the Catholic church in the 20th century concerning exegesis. The text itself is meaningless without an interpreter. The text helps to guide interpretation as does successive interpretation but it need not be determinative. There is also the issue of intuition regarding why the framers expressed the text in the way they did. This involves imbibing the same spirit that they had (which was a religious spirit but a Protestant religious spirit fuelled by naturalism and the romanticism of the eighteenth century).Scalia dismisses the view that we can 'divine' the intent of the founders and must look at the plain meaning of the text. But as Joe K mentioned above this is naive and unself critical.As for why Ginsberg and Scalia come out differently, one would have to read their rationale. Ginsberg is not a strict constructionist and may not even be a constructionist at all. And being a strict constructionist should not be a pre-requisite for the bench.I do agree with Scalia that 5-4 decisions are a sign of health for the bench.

PSOne point I agree with is that at the end of the day it is all about politics. I tend to take, at least provisionally at the moment, the position that the law itself is a tool of politics and always has been.There is a bit of mythologizing of the constitution among Americans just as there was mythologizing of the monarchs in European history (e.g. the Divine right of Kings). We have done away with that but replaced it in the US with the Divine right of the constitution.

The comments above on Scalia & Ginsberg reminded me of a passage in the best-seller Supreme Conflict by Jan Crawford Greenburg, which I am currently reading."And Ginsberg was no bomb thrower. In her 12 years on the DC-based federal appeals court, she developed a reputation as a careful, measured judge and was widely respected by conservatives and liberals as a skillful technician. Even those who disagreed with her respected her approach. She also didn't let ideology get in the way of her relationships with her colleagues: Antonin Scalia had become a good friend when they served together on the appellate court, and they remained close, even regularly celebrating New Year's Eves together with their spouses..." (168).Just an aside, but interesting nonetheless because, according to Greenburg, the justices work on their own and it could be a very lonely job sometimes. The book makes many interesting comments about other justices too. O'Connor, for example, faciliated so that the justices have lunch together. Or, Breyer brought a gregarious presence to the Court, unlike Blackmun before that was something of a mild cold to his colleagues. When Thomas made his post-confirmation to Blackmun, the older justice was "frosty" to his new colleague. On the contrary, Thomas spent 3 hours with Marshall, "a renowned story-teller." This visit "ended with a piece of advice from the liberal legend. "I had to do what I had to do in my time," Marshall told Thomas. "You have to do what you have to do in your time."" (112). The book makes clear too that it wasn't Scalia that influenced Thomas, as assumed by the media at the time, but more of the other way around.

I have seen judges told in no uncertain terms that if they did not vote a certain way they could forget about being elected. And we should not think that judges for life are immune. All travel in certain cirlces and it would be impossible for some to survive ignoring the party's dictums. The exceptions do prove the rule.Worth repeating again George D. "One point I agree with is that at the end of the day it is all about politics. I tend to take, at least provisionally at the moment, the position that the law itself is a tool of politics and always has been.There is a bit of mythologizing of the constitution among Americans just as there was mythologizing of the monarchs in European history (e.g. the Divine right of Kings). We have done away with that but replaced it in the US with the Divine right of the constitution."

Certainly language can acquire new meanings with time and change. What we would now call "cruel and unusual" especially "cruel" is hardly the same as what one would have called "cruel and unusual" two hundred years ago. Should judges not be allowed to attend to these changes in interpreting the law? Unfortunately there is a fine line, hard often to discern, between recognizing well established changes of value--say, about what is cruel--and judging according to one's personal values because one believes they represent "progress", a progress which one believes surely will be, but must admit has not yet been, generally achieved.

I'll take a stab at David Gibson's question from earlier today:"If judges are simply neutral arbiters of the Constitution, why do we get split decisions and differing opinions and so many changes down through the years? If it is all so clear, the plain sense of a thing, then why do Scalia and Ginsberg (among others) have diametrically opposed views on many issues?"I think most judges rise to the task when they get on the bench. I don't know that there is really any such thing as completely neutral, and certainly a judge's life experiences will enter into how he or she views evidence and issues, for example, but most try to be unbiased and fair. Why so many split decisions and differing opinions? Leaving constitutional text aside for now, part of the reason for differences in opinion has to do with what the legislators dump in a judge's lap. Statutes are often fraught with ambiguities. This shouldn't be all that surprising. There may be one version of a bill being debated in one part of a bicameral legislature, and another version of the same bill being debated in the other part. If the bills pass in their respective parts of the legislature, they have to go to a committee to see if they can be reconciled. If they are reconciled, they get voted on again in both parts of the legislature. Ambiguities and vague words and phrases can easily creep into a statute as it goes through multiple drafts and compromises. Some statutes have sections that set forth definitions of key words and phrases. These can be very helpful, but the definitions can contain their own ambiguities, too.Heres an example: Suppose a judge is faced with deciding whether a litigant is entitled to benefits under a statute, and the issue turns on whether the litigant filed a "claim" under the statute. The statute may contain a definition of the word claim that is dispositive of its meaning in the litigation. But if there is no definitional section, the judge has to see how the word is used in the context of the statute to determine if the plain meaning of the word is clear. The judge may also see if there are other instances of the words use in the statute. But suppose such textual review is not very helpful. The judge then turns to the legislative history of the statute, looking for legislative debates, comments, or documents that might shed light on how the legislators intended the word claim to be construed. Often there are conflicting comments about the meaning of a term, especially in instances where different versions of a bill had to go to committee for reconciliation. In such an instance, the judge may be forced to decide which meaning best expresses the intent of the legislators. Often there is no comment or debate about a word in a statute. The judge may have to turn to other jurisdictions that have a similar statute, or the judge may have to turn to a dictionary, or to some other secondary source. Thus, it is easy to see how fair, unbiased, and well meaning judges can sometimes come to conclusions about statutory interpretation that are diametrically opposed. The same is true to a great extent for constitutional interpretation. Most amendments to our federal Constitution have a lot of legislative history that can be consulted. However, the body of the Constitution, including the Bill of Rights (the first 10 amendments to the Constitution), in general have less legislative history. James Madison did a good job taking notes at the Constitutional Convention, but he didnt get everything down. We also have the Federalist Papers to shed light on the meaning of some constitutional provisions. Still, determining the framers original intent is not always an easy task, and its harder still at times to fit circumstances the framers never dreamed of (e.g., issues involving electronic data) into the four corners of the document itself. Thats why well always have a dynamic tension between jurists like Justice Scalia who focus on original intent and strict construction, and jurists who believe the Constitution must have enough elasticity to address new circumstances.

Your argument above about Scalia is fallacious. I would recommend Avery Cardinal Dulles' article on Capital Punishment (FIRST THINGS) to see the history of CP in the Church. After reading this, you will see the comparison between CP and abortion is a non sequiter. Here is Ratzinger (prior to becoming Pope) in his letter on receiving communion. This was fro the Congregation of Faith, not a personal letter:3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia. From a memorandum sent by Cardinal Ratzinger to Cardinal McCarrick, made public in the first week of July 2004.] Worthiness to Receive Holy Communion -- General PrinciplesThat is what the Catholic Church teaches. Equating the sanctity of a mass murderer with an unborn child is ridiculous (by the way, I am pretty much against CP). I think you should read the bios of these killers (slit throats, violent rapes, torture, mass killings, etc.) before coming to a conclusion. http://www.clarkprosecutor.org/html/death/usexecute.htm

David,Absolutely not - Catholics are all bound to follow the teachings of the Church all the time. But again, you ignore what a judge and a legislator are suposed to do. You wouldn't, for example, say a Catholic policeman isn't following the Church's teaching on abortion because he doesn't arrest abortionists, would you? I don't even say Catholic legislators must always "vote for" Church doctrine. I am not even sure what that means. The argument that the "privately agree with Church on abortion, but still think it should be legal" is the equivalent of "privately agree with Church on the sinfulness of unmarried cohabitation, but think it should be legal" is just plain silly. No one is saying Catholic legislators are bound to reinstitute the Papal States in the US.David G.,Even if judges use neutral principles (which I don't think they always do) they can come up with different conclusions for a lot of reasons. That shouldn't concern us. What should concern us is when judges make up rules or twist interpretations or even ignore the words of a statute or the constitution to arrive at outcomes they deem "fair." As a crusty old judge (probably not much older than I am now, but he seemed old to me at the time) said to my opposing defense counsel in a court-martial when he complained something "wasn't fair" (he was a real dope that defense counsel), "Fair is a place to get cotton candy in the summer, Sonny. I don't do fair - what's the law." Finally, I think a lot of folks here are mischaracterizing Scalia's views. He doesn't think you should freeze everything in the 18th and 19th century. He is only saying that you must interpret the document in light of the original understanding of what it meant to those who wrote and adopted it and apply it to current circumstances.

[...] on an interesting discussion in a previous post aboutSupreme Court Justice Antonin Scalia and his view of the relationship between his Catholic [...]

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David Gibson is a national reporter for Religion News Service and author of The Coming Catholic Church (HarperOne) and The Rule of Benedict (HarperOne). He blogs at dotCommonweal.