Scalia lectures Europeans (while at least one American fails to listen)
[posted by Justin Levine]
A San Fransisco “human rights advocate” completely misses the point that Justice Antonin Scalia makes, and his commenters let him have it (almost unanimously).
[h/t: Instapundit]
UPDATE: The “human rights advocate” has now admitted that he didn’t read Scalia’s comments too carefully. He now writes –
– [Correction] –
Oops, I made a big mistake, as several people have commented, including this anonymous poster:
“I think, in your indignation, that you entirely missed Scalia’s point, and that your post is a non sequitur.”
Yep, I missed his point and am rightly being taken to task for my error.
I should be more careful in the future to not quickly post things, especially late at night when heavily medicated with cold and cough medicines.
Your candor is much appreciated Michael. All bloggers have been there at one point or another. Glad to know that you belong to the same group of mortals that I do. Peace out.
(Now maybe commenter ‘blah’ will see the light as well. But perhaps pride will get in the way with this one.)
You have to read the post first but the comments are priceless. I’ve been on the receiving end of comments that far surpass the quality of my post so I know how dense the blogger feels right now.
DRJ (09f144) — 12/20/2007 @ 1:30 pmAs if Nino has never legislated from the bench.
blah (fb88b3) — 12/20/2007 @ 1:54 pmAs if judges don’t get cases because the law itself is ambiguous.
You want easy answers to complex problems, and Nino supplies them. But when the great man breaks his own rules you allow it…
because he’s a great man and you trust him.
That’s the anti-intellectual heart of your logic and his.
Evidently blah does not understand Scalia’s point either.
SPQR (26be8b) — 12/20/2007 @ 1:57 pmFWIW: Apparently the blogger is a gay rights activist who has ties to the militant AIDS group ACT UP.
aunursa (1b5bad) — 12/20/2007 @ 2:00 pm“Evidently blah does not understand Scalia’s point either”
blah (fb88b3) — 12/20/2007 @ 2:11 pmHe wants things left to the legislature not the courts. I responded to that.
Yes, Scalia is mostly right.
But the Madisonian dilemma remains and nowhere does he (in this case) seem to confront it.
It’s not enough (although I agree I wish judges were more willing to say it) to simply say, “I don’t know” and simply let the people acting through the legislature to deal with it.
SteveMG (df2fb1) — 12/20/2007 @ 2:16 pmPerhaps Blah could list a few examples of the Scalia legislating from the bench so we can argue the legal merits.
Just leave out Bush v. Gore since I know you are already going to go there and that’s been argued ad nasuem.
Pick another example.
Headhunt23 (9e1243) — 12/20/2007 @ 2:21 pmTwo discussions of the basics
http://www.concurringopinions.com/archives/2005/10/what_exactly_do.html
http://balkin.blogspot.com/2005/07/legislating-from-bench.html
blah (fb88b3) — 12/20/2007 @ 2:43 pmThere’s nothing ambiguous about the European law Scalia was discussing, blah. It said “4”. It didn’t say “some” or “a few” or just “in private.” That would leave some room for interpretation by judges. No, it said specifically “4.” Do you approve of judges ignoring the clear text of statutes in order to impose their own policy preferences?
PatHMV (bd82a6) — 12/20/2007 @ 2:47 pmAnother
blah (fb88b3) — 12/20/2007 @ 2:51 pmhttp://balkin.blogspot.com/2005/07/what-we-can-learn-from-schlesingers.html
” As the law then stood, homosexual acts were permitted only if no more than two people were present.”
The law was absurd on its face. If the government wanted to make a case about orgies in the park it should try to make the case for that, but if we are thinking in terms of basic civil liberties then the law was a joke.
blah (fb88b3) — 12/20/2007 @ 3:08 pmThe simplest way to avoid the dilemma is to be against judicial review. If you’re not you have no choice but to accept the ambiguities.
Scalia vs. Sondheim
David Ehrenstein (4ce68d) — 12/20/2007 @ 4:09 pmDavid, the example you give supports Scalia. How does upholding a law represent legislation from the bench? Whether or not you like the law is not the question.
Eric (3411aa) — 12/20/2007 @ 4:45 pmBlah, your links don’t support that contention either, although at least the second addresses the point. But I think the author is confusing the clear text of the constitution with how he thinks it should have been written.
Seriously, striking down gun control is “activist”? I’ve never seen a serious legal argument that supports the gutting of the 2nd ammendment.
Eric (605286) — 12/20/2007 @ 4:53 pmJust because the law’s a joke, blah, does not override every citizen’s legal obligation to follow it. “The best way to overturn a bad law is rigid enforcement.”
Or do you prefer some standard where the law itself gets used by those in power as some kind of Damoclean sword, where “everyone violates it” is ignored as a defence when The Powers That Be decide to make an example–and just “happen” to pick someone they don’t like? That’s not law. That’s tyranny.
Reg Starling (7dac2c) — 12/20/2007 @ 5:01 pmSez you. But that’s not why I linked that article.
David Ehrenstein (4ce68d) — 12/20/2007 @ 5:13 pmI do not think “legislation” means what you think it means…especially if you’re using those links for an example. From the second link:
How is this legislating from the bench? It’s the responsibility of the Supreme Court to determine constitutionality of existing legislation.
Same argument.
This isn’t legislating, either. “Organized mayhem” isn’t defined here, but people do have the right to assemble peacefully. We allow all manner of bad behavior from people protesting Bush or the war or globalization. But all of a sudden, the left wants to make abortion protestors follow a different set of rules.
Again, this isn’t legislating. Thomas is merely interpreting the 2nd Amendment. But Balkin objects because Thomas isn’t interpreting it the way Balkin thinks it should be. This is neither legislation nor activism.
I’m pretty sure he’s talking about Eminent Domain seizures. Whatever the case, this isn’t an example of the court legislating from the bench.
Again, this isn’t legislation. It’s determining how existing legislation jibes with the Constitution.
Now, you can argue that calling regulations directed at private development aren’t really “takings”. But that’s not the same thing as calling this legislating from the bench.
Again, how is this legislating or activism?
This has more to do with the 9th and 10th Amendments than the 14th. Claiming that the federalization of crimes violates the states’ rights is hardly legislating from the bench.
How is this legislation? It’s enforcing the 11th Amendment.
Wow! So, saying that private citizens who work for a state government can’t be gang-pressed into service is legislating from the bench. Who knew?
Seems like a proper function of the Court: determining whether legislation passed by Congress is constitutional. But it’s not a case of the Court legislating from the bench.
Again, this isn’t legislating from the bench. It’s ruling that members of religious groups have the same right to use public property as other citizens.
So your example was 0-12. Not a single statement was an example of legislating from the bench. This isn’t the first time you’ve claimed a link contains something it doesn’t. It’s happened often enough that this isn’t an accident, it’s intellectual dishonesty.
Steverino (af57bc) — 12/20/2007 @ 6:59 pmSteverino – blah’s pattern is to slap links up without reading the content because she thinks the headline will make the point she is looking for. She’s all about avoiding work.
daleyrocks (906622) — 12/20/2007 @ 8:26 pmblah is a graduate, summa cum loudly, of the Gren Gleenwald School of Links, where one studies the art of linking to an article, and making shit up about what is contained in that link, since you know people will not bother with reading your links, based on your proclivity of just making shit up.
JD (eadb61) — 12/20/2007 @ 9:06 pmOne thing I’ve noticed from lefty bloggers: they seem to think that “judicial restraint” means never declaring any law unconstitutional. It’s a straw-man attitude.
Steverino (af57bc) — 12/20/2007 @ 9:12 pmDavid, the article you linked does support not only Scalia on “not legislating from the bench,” but also on the idea that he is correct about government having the right to decide what it will pay for, if you want government paying for something. Not just art, but any other area of life. The problem Sondheim has here is he wants the government to pay, but HE wants the right to force that government to pay for what HE wants. The government is the people, and if people don’t want something, why should they pay for it???
reff (99666d) — 12/20/2007 @ 9:15 pmThe Associate Justice made a fabulous speech March 14,2005 on C-Span entitled …… get this….. “Constitutional Interpretation”…… imagine that.
Scalia started off telling how he was watching a television commentary on a Court decision:
“And it struck me how irrelevant it was, how much the point had been missed. The question wasn’t whether the call was right or wrong. The important question was who should make the call.”
That’s it…. Who should make the call.
It’s 45 minutes of humorous clarity.
Deriding the “Living Constitution”, Scalia jokingly said:
“The Living Constitution judge is a happy fellow. He comes home at night and his wife says, “Dear, did you have a good day on the bench?” “Oh, yes. We had a constitutional case today. And you know what? The Constitution meant exactly what I thought it ought to mean!”
Well of course it does, because that’s your only criterion. That’s a very seductive philosophy. So it’s no surprise that it should take the society by storm. And it is the same thing for the man or woman in the street: to know that everything you care passionately about, whether it’s abortion or suicide, or whatever you care passionately about, it’s there in the Constitution. What a happy feeling. That’s what causes it. And that’s what makes it hard to call the society back from it. It’s tough medicine.”
Brickbat to slow readers: Scalia is not big on the “Living Constitution”.
My whole post
bill lever (a16f35) — 12/20/2007 @ 10:38 pmhttp://icutmyway.blogspot.com/2005/03/antonin-scalia-for-chief-justice.html
“As the law then stood, homosexual acts were permitted only if no more than two people were present.”
Does this jibe with The Human Rights Convention? The court said no. Would it jibe with the US Constitution? Many would say no. Others might say yes.
“Seems like a proper function of the Court: determining whether legislation passed by Congress is constitutional”
You can’t avoid interpretation. You accuse others of “interpreting” while you and yours only “enforce.”
There’s no guaranteed line son. It’s often a grey area. You want to get rid of the grey area, get rid of judicial review.
“How is this legislation? It’s enforcing the 11th Amendment.”
Yeah, right.
Conservatives Have Never Practiced Judicial Activism– Not!
blah (fb88b3) — 12/20/2007 @ 10:49 pmThat last quote was lifted from here
blah (fb88b3) — 12/20/2007 @ 10:58 pmblah – That’s a beautiful link to Souter’s dissenting opinion in the Florida gaming case, cupcake. Do you have anything from someone who doesn’t have a vested interest in the outcome of the case, or like Balkin, spends the bulk of his time discussing 100 year old cases. I’m sure you can find one honey.
daleyrocks (906622) — 12/20/2007 @ 11:06 pmBlah @24 – Are you suggesting that those were the wrong decisions? If so, why? If the decisions were, as a result of recent SC decisions, why were they activist decisions.
Analysis, darling!
daleyrocks (906622) — 12/20/2007 @ 11:20 pmI gotta lotta links up there and you respond so what you can, as best you can. But that;s not much.
I guess you think Griswold was wrong too.
“The court did not specify how many people had to be participating in the sexual conduct before it would cease to qualify as part of each one’s ‘private life’,” he said. “Presumably it is some number between five and the number required to fill the Coliseum.”
Well maybe if someone had a house the size of the coliseum there wouldn’t be a problem. For a brilliant man Nino’s not that swift.
“I do assert, however, that in a democratic society the binding answer to that value-laden question should not be provided by seven unelected judges.”
You’re the one who misses the point Jr. And you too Pat. Hard cases are often value laden. And that’s why you have no discussion of Griswold on this site.
blah (fb88b3) — 12/21/2007 @ 1:50 amOr perhaps your readers really want to majority to legislate their own private lives.
Forget Griswold, blah, because it is an opinion best forgotten. Douglas built a strawman and knocked it down. The “facts” of the opinion are solely the imaginings of a demented paranoid and the “reasoning” was a frothy-mouthed rant. Any first-year law student who analyzed a case that way would be flunked. Griswold or no Griswold, Connecticutt’s anti-contraception statute is at the bottom of the trashbin of legal oddities.
nk (6061ba) — 12/21/2007 @ 8:52 amTwo discussions of the basics
http://www.concurringopinions.com/archives/2005/10/what_exactly_do.html
http://balkin.blogspot.com/2005/07/legislating-from-bench.html
There’s nothing in either of those demonstrating that Scalia has ever legislated from the bench.
The first one simply asks the question what would the outcome of various cases have been if conservative methods of interpretation had been used. While that’s an interesting question, it’s irrelevant to the question of conservatives legislating from the bench.
In the second one, he uses the classic Appeal to Authority fallacy to make his case:
The crucial points are, first, that no respectable historian believes that this catalogue of constitutional limitations reflect the original meaning of the constitution
This is the Appeal To Anonymous Authority:
an Appeal To Authority is made, but the authority is not named. For example, “Experts agree that ..”, “scientists say ..” or even “they say ..”. This makes the information impossible to verify, and brings up the very real possibility that the arguer himself doesn’t know who the experts are. In that case, he may just be spreading a rumor.
In fact Balkin is probably engaging in Circular Reasoning, using “respectable” to mean anyone who agrees with him on this.
You just post links as a substitute for logical argument.
Gerald A (b9214e) — 12/21/2007 @ 9:01 amdaleyrocks – You well know that blah does not have original thoughts. He drops in, pukes out some links, and makes stuff up about what is contained in the links. When called on to have an original thought or opinion, he ususally just calls someone a bunch of names, since he is just parrotting someone else’s talking points.
JD (75f5c3) — 12/21/2007 @ 9:05 amJD you’d rather swallow poison than accept anything blah has to say at face value.
David Ehrenstein (4ce68d) — 12/21/2007 @ 9:14 amAnother
http://balkin.blogspot.com/2005/07/what-we-can-learn-from-schlesingers.html
This seems to be his point.
Those espousing judicial restraint held that, in a democratic society, it was for the legislature to fill in the law as they desired, except when committing clear and unambiguous Constitutional violations.
Consider the table produced by Paul Gerwirtz and Chad Golder (New York Times, July 6, 2005, A 19), indicating the propensity of individual justices to vote to strike Congressional laws when challenged in a given case:
Thomas 65.63%
Kennedy 64.06%
Scalia 56.25%
Rehnquist 46.88%
O’Conner 46.77%
Souter 42.19%
Stevens 39.34%
Ginsburg 39.06%
Breyer 28.13%
However, he doesn’t discuss any specific cases and demonstrate that they didn’t commit “clear and unambiguous Constitutional violations”. So it’s completely meaningless.
Conservatives view the failure to strike down clearly unconstitutional laws as judicial activism as much as striking down consitutional laws. For example many considered not striking down the McCain-Feingold bill as blatantly activist. It comes down to whether they are constitutional. But his point is irrelevant to that crucial question. It’s purely statistical.
Again, you post links as a substitute for logical argument.
Gerald A (b9214e) — 12/21/2007 @ 9:15 amblah once again arrives – pretends authority – drops a load of unread links – bluffs – bluff is called – displays ignorance again – demands others rebut her ignorance – ignorance reproved – cycle repeats.
I wonder whether English is blah’s first language?
daleyrocks (906622) — 12/21/2007 @ 9:19 amDavid E – The next rational point you make will be your first. I will give you credit for not regaling us with your sexual fantasies today. I have managed to keep my breakfast down today. Thanks.
JD (75f5c3) — 12/21/2007 @ 9:20 am“Seems like a proper function of the Court: determining whether legislation passed by Congress is constitutional”
You can’t avoid interpretation. You accuse others of “interpreting” while you and yours only “enforce.”
There’s no guaranteed line son. It’s often a grey area. You want to get rid of the grey area, get rid of judicial review.
No one has taken a position against interpreting the constitution or judicial review. Where are you getting that from? LSD? So those points are completely pointless. As is discussing the constitution with you in all likelihood.
Gerald A (b9214e) — 12/21/2007 @ 9:29 amConservatives Have Never Practiced Judicial Activism– Not!
Comment by blah — 12/20/2007 @ 10:49 pm
That’s a hoot. He doesn’t argue that any decisions by current conservatives were judicial activism, but looks at things from the first half of the 20th century or earlier. So you post that as proof that Scalia is activist. Again LSD?
Gerald A (b9214e) — 12/21/2007 @ 9:39 amIt’s called hyperbole, and if you can’t find anything deeper to criticize Scalia with, then save your finger muscles.
Scalia’s point is that there is a number of participants above which a private act becomes a public act. What that number is should not be decided by the courts, it should be decided by the legislature.
You haven’t responded to my dismantling of your link to Balkin. Can we all assume you concede this point, and that none of those were examples of legislating from the bench?
Steverino (e00589) — 12/21/2007 @ 10:04 amFirst, I’m not your son. I’m likely older than you, so don’t refer to me as “son”.
Second, this is a straw man. No one has argued that the court shouldn’t interpret the constitution.
Third, I haven’t accused anyone of the things you claim.
Fourth, the place to remove the ambiguities from the law is the legislature.
More intellectual dishonesty from you. What a surprise! If you can’t argue the point honestly, I’m finished playing your game.
Steverino (e00589) — 12/21/2007 @ 10:08 amInterpretation is ambiguity, bigdaddy, that’s why it’s called interpretation.
You got textual literalism or you don’t.
blah (fb88b3) — 12/21/2007 @ 11:18 amAs a matter of language, if you think the second amendment describes a personal right, then it should cover shoulder-held rocket launchers. I think there’s a good case to be made for that, but many gun advocates don’t. That’s a problem for their argument.
“Connecticutt’s anti-contraception statute is at the bottom of the trashbin of legal oddities.”
But shouldn’t that be up to the people to decide?
“Fourth, the place to remove the ambiguities from the law is the legislature.”
The legislature put them there to begin with. And it makes not sense to have to turn every damn dispute into another written law. Micromanaging reality is something you like to complain about right?
“Scalia’s point is that there is a number of participants above which a private act becomes a public act.”
Yeah? What number is that?
“I don’t calls ’em like I sees ’em I calls them as they are”
So you say.
My links are raising questions you say are answered. I’m not answering your questions, I’m only saying you can’t either.
“My links are raising questions you say are answered. ”
That is the epitome of blah’s link shotgunning – blah does not make arguments … the links do.
SPQR (26be8b) — 12/21/2007 @ 12:39 pmInterpretation is ambiguity, bigdaddy, that’s why it’s called interpretation.
interpretation |inˌtərpriˈtā sh ən|
noun
the action of explaining the meaning of something : the interpretation of data.
• an explanation or way of explaining : this action is open to a number of interpretations.
• a stylistic representation of a creative work or dramatic role : two differing interpretations, both bearing the distinctive hallmarks of each writer’s perspective.
You got textual literalism or you don’t.
As a matter of language, if you think the second amendment describes a personal right, then it should cover shoulder-held rocket launchers. I think there’s a good case to be made for that, but many gun advocates don’t. That’s a problem for their argument.
“Connecticutt’s anti-contraception statute is at the bottom of the trashbin of legal oddities.”
But shouldn’t that be up to the people to decide?
“Fourth, the place to remove the ambiguities from the law is the legislature.”
The legislature put them there to begin with. And it makes not sense to have to turn every damn dispute into another written law. Micromanaging reality is something you like to complain about right?
“Scalia’s point is that there is a number of participants above which a private act becomes a public act.”
Yeah? What number is that?
“I don’t calls ‘em like I sees ‘em I calls them as they are”
So you say.
My links are raising questions you say are answered. I’m not answering your questions, I’m only saying you can’t either.
So you’re no longer claiming that conservatives legislate from the bench – your original claim. Now it sounds like you’re just arguing in favor of legislating from the bench.
Interpretation is ambiguity, bigdaddy, that’s why it’s called interpretation.
It’s liberals like you who oppose interpreting. Legislating from the bench is not interpreting. In the vast majority of cases there is no ambiguity. The statute Scalia was talking about had no ambiguity. The ambiguity was in the decision of the court that ruled in favor of the gay who brought the case, doofus. That’s what Scalia was talking about. You’ve created this BS “everything’s ambiguous” claim as some blanket license to make up laws.
You got textual literalism or you don’t.
Conservatives like Scalia talk about original intent. You haven’t figured that out yet?
How is Connecticutt’s anti-contraception law not up to the people to decide?
The legislature put them there to begin with. And it makes not sense to have to turn every damn dispute into another written law. Micromanaging reality is something you like to complain about right?
Again, the vast majority of cases there is no ambiguity. That’s not what these cases are about. How is removing ambiguity “Micromanaging reality” anyway? If there’s a court case that arose from some alleged ambiguity then something is already being impacted by that law. You think it’s okay for the court to remove ambiguity. How is that any less “Micromanaging reality” than if the legislature does it?
My links are raising questions you say are answered.
Those links were supposed to demonstrate that conservatives like Scalia legislate from the bench. That was your claim anyway. So then it’s fine if liberals do it too. Now they’re just “raising questions”.
Your method is to make lots of arguments each of which makes no sense, or lots of links which don’t prove your point, and hope nobody breaks them down one by one.
Why don’t you just be honest and say you don’t want the law to be decided by the political process, but want justices who think like you do to decide everything? Then we could be done with this endless game playing.
Gerald A (b9214e) — 12/21/2007 @ 12:44 pmThen the legislature needs to do its job better. Would you rather reality be micromanaged by the courts?
“Scalia’s point is that there is a number of participants above which a private act becomes a public act.”
Yeah? What number is that?
Reading for comprehension isn’t your strong suit, is it? Or are you being deliberately obtuse? My very next line said that Scalia’s position is that the number should be decided in the legislatures, not the courts. You are breathtaking in your dishonesty.
Steverino (e00589) — 12/21/2007 @ 12:49 pmI pointed out that your link didn’t illustrate what you claimed it did: legislating from the bench. I went through each example in that link and demolished them. If that’s your idea of “not answering questions”, then there is no point in further communication.
Steverino (e00589) — 12/21/2007 @ 12:51 pmI have often made mistakes on first reading a post and on replying too quick and have admitted it immediately. What’s really funny is the little nosepickers (who would look better with an M-1 rifle butt bashing their face to flatness (how close can I scrape on innuendos of threat without it being assault Patty? I’m not a (pussy ass) lawyer, so I don’t know (and are nested paras considered appropriate grammar or style?)))
TCO (79f88a) — 12/21/2007 @ 4:22 pmOoops I forgot to finish the non para-ed sentence. Grammarian flame warrior will be coming to clash with me soon?\
TCO (79f88a) — 12/21/2007 @ 4:23 pmFine, TCO. You’re not a pussy ass lawyer. The legal profession just breathed a big sigh of relief. But what kind of pussy ass are you?
nk (6061ba) — 12/21/2007 @ 4:32 pmblah –
As I expected, pride won’t allow you to concede what even the original author of the post that is linked to now concedes.
Justin Levine (95b7d2) — 12/21/2007 @ 4:33 pmnk, merely a profane one.
SPQR (26be8b) — 12/21/2007 @ 4:37 pmReally? I was going to post about a friend of mine (a child actor and later a Warhol star p note, now deceased) who had sex with Jane Fonda once — as her 70th birthday is being celebrated today.
But I’ll restrain myself.
E-mail me if you want the skinny.
David Ehrenstein (4ce68d) — 12/21/2007 @ 5:02 pmBarbarella is seventy? Now I feel old.
nk (6061ba) — 12/21/2007 @ 5:48 pmI’ve had her. She’s nothing.
daleyrocks (906622) — 12/21/2007 @ 6:17 pmLOL!
David Ehrenstein (4ce68d) — 12/21/2007 @ 6:20 pmWould it be possible to install an editing filter for readers, where we could click on the filter and edit off the screen all comments by or about blah? Or, would that leave us, in many cases, with nothing to read?
Another Drew (8018ee) — 12/21/2007 @ 6:56 pm