The Optimist
The recent death of Justice Antonin Scalia has produced a flood of commentary about nearly every conceivable feature of the man’s life. For good reason. Scalia was the most consequential American judge of at least the past fifty years, and possibly since Oliver Wendell Holmes Jr. Many have remarked on his interpretive legacy of textualism and originalism. Scalia was a pioneer in making others see that the raw materials of legal interpretation—words—limit the range of meaning that a judge can extract from them. Others have noted his pungently elegant writing style, which blended the virtues of direct, clear, brilliantly colorful, and incisive prose in equal measure. My own students find these qualities appealing, but they appreciate just as much his unified, logical, and cogent vision of the Constitution. They admire the coherence of system and the lucid order that Scalia shows them in the Constitution’s structural divisions and careful allocations of power. And still others have remembered his charm, his warmth, and his capacity to disarm opponents by sheer force of personality and good humor. No Justice of the Supreme Court—and few statesmen in the history of the American Republic—ever was blessed with his panache.
Scalia influenced the law in just about every way that a judge can, and it exceeds my ability to evaluate his contributions comprehensively here. Yet it is possible to say that of the many threads that stitch together Scalia’s jurisprudence, perhaps the most durable and the least remarked is his abiding, unshakeable, sometimes confounding, occasionally maddening optimism about the character of the American people. In nearly every area of the law he touched, Scalia was animated by the firm conviction that ordinary people—their judgment, their customs, their traditions, their political and moral sensibilities, their wisdom and commonsense—would always reward the enormous confidence he reposed in them.
Consider his textualism and originalism—two of the most discussed and most misunderstood (or at least misdescribed) features of his jurisprudence. Both interpretive approaches draw strength from a deeply hopeful, even faithful, wellspring about the nature of law, the people who make it, and the people who are governed by it. The interpretation of law, as written down in statutes and the Constitution, is not merely political will. It is not the exercise of raw power by surreptitious or clever means. It is not a game to be won by the most politically astute manipulator. Texts have certain fixed meanings, and the process of enacting those texts democratically presupposes that the enactors are using words in ways that other citizens—in their own historical period and in time future—understand and approve. To say that texts have fixed meanings is of course not to deny that sometimes those meanings will be vague or underdetermined. But textualism and originalism vindicate the lawmaking process—ennoble and validate it as a rational and worthwhile human endeavor. The fairest of Scalia’s critics have pointed out that he was not fully committed to his methods, that he applied his textualism and originalism with something less than complete consistency, that he was only a “fainthearted” and perhaps even an opportunistic originalist. He acknowledged these objections. And yet he maintained that judges respect the activity of lawmaking when they respect the law’s words. By doing so, and by avoiding linguistic distortion, they honor both the people who worked to create the law and those subject to it.
Scalia’s profound faith in the American character was also manifested in his stubborn resistance to the Supreme Court’s penchant for inventing new constitutional rights, as well as his reliance on American history and tradition to give substance to constitutional text. In the absence of specific authority to the contrary, American people were to be trusted in governing themselves. Their traditions, their political settlements, their manner of doing things, and their social arrangements were not to be disrespectfully bulldozed, no matter how self-righteously certain the bulldozers might be about the direction of progress. He decried decisions, as in United States v. Virginia, that blithely tossed aside longstanding American traditions and institutions that have endured and served the people. He rejected his colleagues’ efforts to read their own bien-pensant visions of fairness and justice into the Constitution, and yet this was in large part because he appreciated and valued the inherited traditions of fairness and justice at the root of American political and legal history. When Justice Brennan complained in his Burnham v. Superior Court concurrence that “contemporary notions of due process” required the Court to reject “the perpetuation of ancient forms that are no longer justified,” Scalia responded in the plurality opinion that contemporary and traditional fairness are one and the same. It is American tradition that renders a particular practice or manner of doing things reasonable and fair as a matter of due process.
His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.
In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.
Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:
Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.
Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”
So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.
In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.
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Marc DeGirolami: I've read a lot of whitewashes of Justice Scalia since he died, but really--"ordinary people would always reward the enormous confidence he reposed in them"?
I wish Richard and Mildred Loving were still around to read that. Yes, I'm aware that Scalia was not on the Court when it was considering the Loving v. Virginia case. But if he were consistent, he would have dissented from the ruling that laws against interracial marriage were unconstitutional, and told the Lovings to simply move to another state where their marriage was legal if they didn't want to wait for Virginia (living apart the whole time) to change its law.
Odd that Scalia, so certain that he could read the minds of the founding fathers, seemed to despise the very existence of the Court he was a member of. Did it never occur to him to wonder why the founders had created a Supreme Court in the first place?
Antonin Scalia was, by all accounts, very intelligent. Yet he squandered that gift in pandering to the worst (arrogance, vanity, malice, and wilfull ignorance) aspects of his upbrilnging. He was a coward.
Try as I may I cannot recall reading a post on Commonweal more lacking in veracity from a person who by credentials should clearly know better. But, then, it really is true Donald Trump is not merely running for President of the United States he is, in fact, doing "well". Democracy does not merely require a difference of opinion it demands it. What it neither requires or demands is such an utter distortion of the reality of a fellow, Scalia, who daily served his own perceptions up as reflections of justice.
What case can be made that the Constitution defines "Person" and Rights so distinctly that economic associations and corporations must enjoy those of citizens (as in "Citizens United")? Where did Scalia's interpretive approach come in here?
And I guess corporations have religious rights since they are pdersons. Scalia was a right wing politician in robes and denied that you could find new rights in the Constgituion when he did that in the Heller decision. Not a particularly great jurist, but rather a bully and bigot to minorities. "Blacks can go to lesser schools." Enough siad. I am ashamed he was a Catholic.
Sorry for the bad typing.
Optimism and trust are just about the last attributes I would think of assigning to Justice Scalia's work. His originalism always seemed to me to flow from a profound mistrust in change. His traditionalist Catholicism so obviously intertwines with his legal judgments. One magisterium leads to another. The common thread would appear to be placing order above mercy, a fear of modern life ahead of any genuine faith or trust in the American people. Calling him an optimist and his textualism a matter of trust is an astonishing claim in the face of his clear pessimism about humanity.
He had a great vocabulary and like William Buckley, he was able to convince a lot of dumb people and some others he was right. He was so wrong. RIP Judge Scalia.
What was most horrifying about the "pro-life" Catholic Scalia is that he not only approved of the death penalty, he had no problem with executing someone as long as (by Scalia's standards) the trial was fair, even if evidence emerged after the trial that the defendant was innocent.
I'll bet Scalia would have relished the chance to preside at the Salem witch trials or the Spanish Inquisition.
An interesting set of comments. A prominent Catholic judge dies, and most of the comments on a Catholic website are negative- people who disagreed with his judicial governance. (Even allowing for trolls it's a sad picture.)
Here are some comments, from an authoritative textual source, addressed to the OP's "In the absence of specific authority to the contrary, American people were to be trusted in governing themselves."
Before there was an American democracy- 'government by the people'- there was Jeremiah:
"I know, Yahweh, no one's course is in his control, nor is it in anyone's power, as he goes his way, to guide his own steps." Jer 10:23, NJB.
Likewise, there is this alternate governance proposed, by our Lord Jesus:
"So you should pray like this: Our Father in heaven, may your name be held holy, your kingdom come, your will be done, on earth as in heaven." Mt 6:9,10, ibid.
What would happen, do you think, if the 'anthropoi' who make up the 'demos' began to apply these?
Reposted Comment
My apologies but in reading my posting on line I found numerous typos and that one of my links to another article on Scalia failed. I am repostiong to correct those errors:
There is so much to say about this totally wrongheaded essay evalauting Scalia that it is difficult to know where to begin. As to his judicial theories of " originalism" as related to the Constitution or "textualism" as related to statutory interpretation, the highly regarded scholar and jurist Judge Posner of the 7th Circuit in Chicago described Scalia's oft-criticized related theories of judicial interpretation as totally incoherent allowing him to come to any result he desired. With respect to "originalism" in regard to the Constitution,Justice Scalia did this by allegedly reading the minds of our 18th century drafters of the constitution. Thus, he avoided the need to consider how we had evolved over the almost 250 years since it had been written; thereby binding us to an 18th century view of the world. This constrained the deveopment of our civil liberties. In the case of statutory interpretation he refused to consider the clear intent of the law from the context of what was said as to intent of the legislation as reflected in committee hearings. Even his fellow conservative Justice Roberts chastised him on his textualism theory when considering the legality of the federal excange in connection with the Affordable Care Act. Here is the link to the Posner article which in clear and concise langauge describes the flaws in Scalia's theories of judicial interpretation. https://newrepublic.com/article/106441/scalia-garner-reading-the-law-tex.
The harm Justice Sclia did to our country over his years on the Court are to numerous to list in this reponse. Just to name a few : Bush v. Gore where he stood the Constitution on its ear by denying the highest Court of a state the right to determine how questionable votes are to be counted. Plain and simple he voted to insure his party's candidate was elected. In Heller he interpreted the second amendment through his originalism theory and provided an interpretation of the history of the second amendment that most historians disagree with us. He thus opened every state gun law to challenge. In Citizens United he opened the flood gates to unlimited campaign contributions from this country's elites without limitation. Thereby giving them the ability to buy and sell our legislators and influence llegislation to favor only their interests and not those of the public. Then, not satisfied with this damage, to our elelction process Justice Scalia in the Shelby County case voted to repeal Section 4 of the Voting Rights Act of 1965 thereby making it easier for states with a history of racism to restrict the right of the poor and minorities to vote and those states have done so and others encouraged by the Court's action in repealing Section 4. For a succunct recounting of these missteps see Charlie Pierce's excellent article written the day after Scalia died and linked here http://www.esquire.com/news-politics/politics/news/a42134/antonin-scalia....
While regularly described as a conservative practicing Catholic, his opinions often showed him to be something other than a caring and forgiving Christian in the manner of Pope Francis. I don't know whether Justice Scalia remembered the words of Jeremiah or Mathew as quoted in another posting,.but it is quite clear from a reading of his opinions that he never took to heart whatever the Jesuits taught him about the the Lord's message in the Beatitudes and in his words throughout the gospels calling us to forgiveness, justice and mercy for all in our words and deeds.
From the news articles on his funeral mass his family members loved him greatly and deeply mourned his death. Naturally we are all each individually sorry for their loss. However, our Country will not mourn the passing of a judicial interpreter, who wielded his philosophy of jurisprudence largely on behalf of the wealthy and privileged of our nation and against the rights of the rest of us. I can only shake my head trying to understand why a respected journal like Commonweal would have published such an unbalanced essay totally lacking in any substative critical commentary on his life's work on the Court. As one commenter wisely noted it was a Commonweal white-wash. Very sad!
My favorite anecdote about Antonin Scalia and Originalism. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” (As told recently by Jeffrey Toobin in the New Yorker.)
It is important to note that if evidence appeared after a trial that showed that the defendant was innocent, the defendant could not have had a fair trial from the start.
Tom, Judge Posner's article is neither clear or concise because it is based on a false assumption. It is important to note that Justice Roberts upheld that The Affordable Care Act Mandate to buy health insurance is a tax, not a penalty, thus one must view the legality of federal exchange in light of The Commerce Clause. The HHS Contraception Mandate that contraception must be included when purchasing health insurance, is clearly not a tax, but a mandate that is unconstitutional under The Commerce Clause, The First Amendment, and The Eighth Amendment .
Having failed at redefining Religious Liberty through The Hosanna-Tabor Case, The Obama Administration is attempting, through the contraception mandate that was added after the Affordable Health Care Act was passed, to redefine Religious Liberty through an Administration Agency. Not only does an Administrative Agency not have the authority to determine who is and is not religious enough to have their Right to Religious Liberty secured and protected, this Administrative Agency has placed an obscene fine of $100 per employee, per day, per year, for providing Health Insurance that does not include contraception coverage, when the fine for failing to provide any Health Insurance is only $2,000 dollars per employee, per year, clearly a violation of the principle of proportionality and thus The Eighth Amendment as well as The First.
The University of Notre Dame’s argument was clear and compelling, unfortunately Judge Posner did not understand the nature of the debate.
There is no compelling evidence that providing free contraception is necessary or proper in a Health Care Insurance Plan. Contraception is not Life-affirming or Life-sustaining, and in some cases, destroys a human life, promotes promiscuity and the sexual objectification of the human person and thus is not good for the posterity or prosperity of this Nation or the World. The Catholic Church’s teaching on contraception is grounded in respect for the inherent dignity of the human person and respect for sexual love within the Sanctity of marriage.
The Constitution does not establish an inherent right to free contraception, it does, however, serve to protect our inherent Right to Religious Liberty. If The Obama Administration and Judge Posner respected The University of Notre Dame’s Religious Liberty, and thus their desire to not condone an act that violates a tenet of their Faith, they would have allowed The University of Notre Dame to provide Health Insurance to their employees that did not include contraception coverage; they would not have desired to place an excessive fine of $100 a day per employee, per year, on the University, which can only be construed as a means to “Influence the recipient” of said fine and coerce them to include contraception coverage, or condone the use of contraception through having it included by way of a third party.
DOMA defined marriage in federal law as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7.a
Judge Posner is under the false assumption that a judge has the authority to both interpret the law, and change the letter of the law, in this case removing the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of a marriage contract, while making it possible to define any relationship as a marriage if one so desires.
No doubt, our Founding Fathers were creationists, not evolutionists, recognizing that our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness does not evolve, but rather, is endowed to us at the moment of our creation, thus our Founding Fathers recognized the self-evident truth, that a human person can only conceive a human person, thus every son or daughter of a human person can only be a human person, that only a man and woman can exist in relationship as husband and wife, and that marriage cannot in essence be, existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.
http://www.adherents.com/gov/Founding_Fathers_Religion.html
http://www.freerepublic.com/fo...
No doubt, Justice Scalia's wins were many:
http://www.usatoday.com/story/news/politics/2016/02/20/transcript-rev-pa...
"But more important to us — and to him — is that he was Dad. He was the father that God gave us for the great adventure of family life. Sure he forgot our names at times, or mixed them up, but there are nine of us.
He loved us, and sought to show that love. And sought to share the blessing of the faith he treasured. And he gave us one another, to have each other for support. That's the greatest wealth parents can bestow, and right now we are particularly grateful for it."
May Justice Antonin Scalia, rest in The Peace of Christ.
In reply to the above comment. A judge is to apply the law, not religious principles. We do not live in a theocracy. Religious liberty also implies freedom from being forced into observing others' beliefs or not being allowed to practice your own. Notre Dame and others just need to inform the HHS that they are exempt either by form or letter and that's it. They want the government to mind read. Then none of their money goes for contraception. Birth control was pretty standard in many health plans before the ACA. How did these entities tell their insurers, they didn't want this coverage before ACA? Mental telepathy perhaps? I would remind the writer that most modern federal law is implimented through rules issued by the responsible agency following the general outline specified by Congress. Each detail is not in the law.
Rudolph, Even if birth control was pretty standard in many health insurance plans, it is not necessary or proper for an administration agency to mandate that every health care insurance plan must include birth control, as this mandate was not part of The Affordable Health Care Act, from the start.
In summary, The HHS Contraception Mandate, which places an obscene fine, that clearly is a violation of the principle of proportionality, on those employers who desire to provide their employees with Heath Insurance sans birth control, can only be viewed as an attempt to influence the recipient of said fine and coerce them to include contraception coverage, or condone the use of contraception through having it included by way of a third party. Certainly Judge Posner should have realized this, unless he no longer believes that one cannot separate the spirit of the law, from the letter of the law, without changing the very essence of the law.
Nancy D: Remember Sandra Fluke, the woman who was savaged by Rush Limbaugh (among others) for testifying before Congress in support of the contraception mandate?
She testified on behalf of a friend who took the birth control pill to control the growth of an ovarian cyst. The friend could have had surgery, but taking the pill was cheaper and less invasive.
Contraception coverage needs to be offered by health insurers because the pill is used to treat some conditions like the cyst. Not every patient takes the pill to avoid pregnancy.
Angela, Are you suggesting that the compelling interest the HHS has for mandating that free contraception must be included in every Health Insurance plan rather than for example, free insulin, is not because they believe free birth control trumps our inherent right to Religious Liberty, but because free birth control can be used to treat some medical conditions? On what basis do you think the HHS can justify the obscene fine of $100 a day, per employee, per year, that they place on those employees who desire to provide their employees with Health Insurance sans contraception coverage, versus the fine of $2,000 per employee per year, for failure to provide any Health Insurance?
"Two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony."
https://en.m.wikipedia.org/wiki/Native_American_Church
Smith was not a case about Religious Liberty, as the two Native Americans involved were still free to use peyote in a religious ceremony; this case was about the fact that a rehab center has the right to hire persons who support their mission.
The irony here is that The Religious Freedom Restoration Act, clearly serves to undermine our inherent Right to Religious Liberty, by allowing the Government to coerce individual persons as well as groups of persons to render onto Caesar, what our Founding Fathers recognized belonged to God. God Is The Author of Love, of Life, and of Marriage, not Caesar.
With respect to Scalia and "originalism", I direct your attention to the case of Gonzales vs. Raich, 545 U.S. 1 (2005). Angel Raich was growing marijuana for her own medicinal use, which was legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, who based the decision ultimately under the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As [US v Lopez, 514 US 549 (1995)] itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could ... undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.
Interestingly enough, Justice O'Connor based her dissent on exactly the same case Scalia based his concurrance, Lopez. She said that Lopez placed limits on Federal use of the Interstate Commerce clause and Raich's use of marijuana came under those limits.
Clarence Thomas, of all people, said that the majority was wrong, saying that Raich grew and used
marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal government is no longer one of limited and enumerated powers. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.
Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".
The gist of Thomas' dissent comes straight out of original intent:
Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
I believe that here, Thomas is quite right, and Scalia only really supported "original intent" when he agreed with it.
Nancy, I'm suggesting that the Catholic Church drop its anachronistic and mostly ignored ban on "artificial" contraception. That will solve everyone's problem.
Nancy-- All these entities have to do is to OFFICIALLY notify HHS they are exempt. Then they have no further involvement. Again, I ask how did these entities tell their insurers that they didn't want contraception covered before ACA since many plans already do cover it because it's used for other conditions besides preventing pregnancy? I'm sure they used a form. Most Catholics don't even hold to the Church's position on this and they never have. Even Pope Francis has expressed the possibility of an exception for Zeka virus and this would be used to prevent pregnancy. Ok once but not OK always?
I recently reopened this atrocious essay of Professor DeGirolami on Justice Scalia and saw the posting of Nancy D which under the guise of responding to my comments on the Justice's flawed judicial philosophies largely goes into subjects I did not address. My posting was intended to lay out the fallacies in Justice Scalia's judicial philosophies of Constitutional and legislative interpretation. This posting is a reply to the comments of Nancy D:
First as to my comments with regard to the Second ACA case King v. Burwell, that case dealt solely with certain statutory language that depending upon how certain words were interpreted would decide whether purchasers of medical insurance purchased on the Federal HHS exchange who resided in states that had refused to set up “ state exchanges” would or would not be entitled to the subsidies enabling them to buy that insurance. Under Justice Scalia’s strict textualism all such purchases would lose these subsidies . Chief Justice Roberts , a fellow conservative, rejected Scalia’s textualism as being inconsistent with the “context and structure of the Act”. See http://www.theatlantic.com/politics/archive/2015/06/roberts-scalia-affor....
Roberts noted that up to 87% of those from states without a “state exchange who purchased from the HHS exchange would lose their subsidies making their insurance unaffordable. Thus,by interpreting three words in a manner so as to ignore the clear intent of the law, Justice Scalia would have denied millions of poor and low income Americans their medical insurance. Need I say more about the absurdity and mean spirited nature of Scalia’s textualism.
If fail to agree with Judge Posner or find him neither clear nor concise, than I would propose you read the well documented article by Prof. Erwin Chemerinsky, recognized as one of our leading scholars on the Constitution. His article “The Jurisprudence of Justice Scalia: A Critical Appraisal” examines Scalia’s “originalism” in detail and finds it completely flawed. Those interested in reading his essay can do so simply byb putting the title of the article into your Google or other search engine. The article explains among many other absurdities that if Scalia’s theory had been used in the landmark civil rights case of Brown v. Board of Education it would have been decided differently. Also, it points out that the “originalism” rubric continues to be used to justify our cruel and unusual punishment of “ State execution” because it was allowed in the colonial times attending the passage of the Constitution. Such reasoning allows our states to kill prisoners even though that practice has been abandoned by all of the countries of the industrialized Western world. Chemerinsky, quoting from an article by Justice William Brennan, notes that such reasoning would also justify penal institutions "pillorying, branding, cropping and nailing of the ears” all of which were similarly practiced in colonial times and yet are no longer allowed under our various penal codes. In sum, Chemerinsky makes clear that “originalism” was an instrument to preserve Scalia’s “conservative agenda”.
As to the Doma decision and the subsequent Obergefell decision affirming the right of gays and lesbians to marry from both of which Justice Scalia dissented, I did not address these. However, as you do then I need to point out that , as you properly assert the " The Founding Fathers recognized that our unalienable Right to Life, Liberty and to the Pursuit of Happiness….. is endowed to us at the moment of our creation” than how can one argue that these Court’s decisions were wrongly decided. How can one’s marital status be used to deny Federal benefits to gay and/or lesbian partners at issue in Windsor or not permit gay and lesbian couples marry in the exercise of their right to life, liberty, and the pursuit of happiness through marriage at issue in Obergefell. There can be no justification for limiting the joys of marriage only to heterosexuals. In partial justification for your position,you state that the definition of marriage is properly limited to that between a man and women because only in such a marriage is it possible to conceive a child. Then, please explain how is the union between a man and a woman, who either because of physical disability or age at the time of their union are unable to conceive children be entitled to state recognition as a marriage. Since they are then why should not a marriage between a man and a man or a woman and a woman that are unable to conceive a child not also be entitled to be called a marriage . Is it not the lifelong mutual pledge to love, honor and obey in sickness and in health that entitles a union to be called a marriage irrespective of the ability to bear children? If the reasoning in Justice Kennedy’s decision in Obergefell did not convince you of the justification for calling the union between same sex couples who like heterosexual couples pledge their undying love to each over is entitled to be called a marriage then Judge Posner’s reasoning in one of the cases reviewed by the Court in Obergefell, puts a nail in the coffin of opponents of gay marriage. See
Federal Judge Richard Posner's stinging rebuke to foes of gay marriage, full .html text
Maybe the wrongheadedness of Justice Scalia on the issue of homosexuality can be found in his mean spirited dissent in Lawrence v. Texas that abolished the right of states to punish their citizens for performing consensual sex with another of the same sex. Justifying his dissent and thereby endorsing laws which criminalized homosexual acts between consenting adults Scalia said: “ Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, as boarders in their home. They view this as protecting themselves and their families from a life style they believe to be immoral and destructive”. A similar mindset of intolerance allowed the racist Jim Crow laws to continue to exist in this country from the end of reconstruction after the Civil War until the Johnson administration,almost 100 years. What Justice scalia said was there was unchristian and offended every family with a homosexual child or other relative and every person who has homosexual friends. Where in his words do we find the Catholicism of love, mercy, and forgiveness taught in the gospels and that Pope Francis calls us to over and over again.
Finally, I will not take the time to address another issue that was not a part of my criticism of Justice Scalia’s jurisprudence. That is the issue of the right of Catholic institutions to continue to protest the obligation under the ACA to provide contraceptives to women under an ACA approved health plan. As others have noted the Obama administration has already allowed these institutions not to offer contraceptive services if they simply sign a statement that they have a religious objection. If they do sign such a statement and many have done so , then access to contraceptives will be provided outside their health plans by the federal government. This is not enough for certain Catholic institutions like Notre Dame. I have neither the time ,energy nor interest to explain why the signing of the statement should not be considered a violation of their freedom of religion. I can only say that when Catholic jurists ascend the bench they need to be careful that they remain neutral and not use their individual beliefs to impose their religion on their fellow citizens who do not accept their beliefs, Clearly Justice Scalia never got that message in his years on the Court. He decided he would impose his pharisaical brand of Catholicism on his fellow citizens whenever the opportunity came his way.
Angela, Perhaps this will help you understand God's intention for Conjugal Love:
http://www.newadvent.org/library/docs_pa06hv.htm
Tom, Due Process applies to persons. Regardless of Race/Ancestry, from the moment of conception, persons exist in relationship as sons, daughters, brothers, sisters, husbands, wives, fathers, mothers, not as objects of sexual desire/inclination/orientation. It is not unjust discrimination that only a man can be a son, brother, husband, father, and only a woman can be a daughter, sister, wife, mother.
What separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. Marriage cannot in essence be, existing in relationship as husband and wife and not existing in relationship as husband and wife, simultaneously. Once you remove the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of a valid marriage contract, while promoting marriage fraud and adultery, simultaneously, any relationship can be defined as marriage if one so desires. If you give special marriage privileges to some persons who do not have the ability and desire to exist in relationship as husband and wife, you must extend those same marital privileges to all persons who do not have the ability and desire to exist in relationship as husband and wife. Since it defies logic to suggest that marriage can both be and not be, existing in relationship as husband and wife, the question before the Court should be, is it unconstitutional to give special marital privileges to those persons existing in relationship as husband and wife, for the sake of marriage and the family?
The Commerce Clause prevents The Federal Government from coercing every Insurance Company into becoming a peddler of contraception, or dictating which plan we must choose, our tax laws prevent The Federal Government from placing an obscene fine that violates the principle of proportionality, on those who because they do not want to violate a tenet of their Faith, desire to choose Health Insurance that does not include birth control, and both The Commerce Clause, and our tax laws, as Judge Posner is well aware, cannot serve as a means to deny both the letter and the spirit of The Constition in regards to The First and Eighth Amendments.
Nancy, my husband and I agreed when we married that when the Pope and the bishops helped support them, they could tell us how many children we should have.
Angela, you are free to believe what you desire to believe, but that does not change the fact that it is not necessary, nor is it proper, to coerce any person into violating a tenet of their Faith for the sake of free contraception, which is why our Constitution serves to secure and protect our inherent Right to Religious Liberty, which can only be endowed to us from The True God; Our Constitution does not serve to secure and protect a non existing right to free contraception.
Nancy, before the ACA went into effect, 24 states had laws requiring insurance companies to provide contraceptive coverage. As Rudolph pointed out, Catholic employers never made a peep about those insurance policies.
The Little Sisters of the Poor carry their newly-found objection to contraceptive coverage to ridiculous lengths when they won't even sign a waiver and send it to HHS. Maybe the next woman to join their order can take the name Sister Kim Davis.
Angela, your argument is based upon a false assumption.
Here is what Justice Kagan had to say in Yates v. United States:
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. ‘Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.‘ Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design."
The HHS contraception mandate was added to the Affordable Health Care Act after the Affordable Health Care Act was passed. An Administration Agency does not have the authority to change the letter or the spirit of the law, nor does any Court, including The Supreme Court, which is the basis premise of Justice Scalia's argument in regards to our Republc, and the law of our land, The United States Constitution, which serves to secure and protect our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, endowed to us from God, the purpose of which can only be, what God intended.
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