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Tuesday, March 15, 2005
Scalia: "We Have Rendered The Constitution Useless"
Required reading for Canadians unconcerned with the activism of Canadian courts. Scalia, as is his habit, cuts through the feel good rationization and lays out what is at stake. Although he is speaking of the United States Supreme Court, he could just as easily be talking about Canada.
In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said."If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility." "Why in the world would you have it interpreted by nine lawyers?" he said.
Scalia, who has been mentioned as a possible chief justice nominee should Chief Justice William Rehnquist retire, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process. "Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution," said Scalia, who was appointed to the court by President Reagan in 1986.
He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren's political background. Warren was governor of California and the Republican vice presidential nominee in 1948. "You have a chief justice who was a governor, a policy- maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it's hard not to follow," Scalia said, in response to a question from the audience.
Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law. "If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us," he said, explaining that's why senators increasingly probe nominees for their personal views on positions such as abortion. "When we are in that mode, you realize we have rendered the Constitution useless," Scalia said.
If you read the last few lines of the original Associated Press item, you'll find a reference to his "prickly" relationship with reporters, as a pretext for tossing in an unrelated cheap shot - not to mention the glowing editorializing of the "Warren era". As James notes; "No bias there!"
Posted by Kate McMillan on March 15, 2005 | Permalink
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Comments
There was a long-ago article by the late Chief Justice John Sopinka (G&M Nov 25, 1997) 'On telling the majority that it is wrong'. This article clearly differentiates the political from the legal realm and points out the dangers of merging the two.
As Sopinka said 'there is a difference between politics and the law'...There is a difference between making decisions according to how popular they are, how many people will support them...these are political calculations- and making decisions according to whether a particular result is rational, logical, consistent with past practice, appropriate in light of liberal democratic principles and morally defensible. These are legal determinations."
We are more and more, merging these two realms - just note how both Paul Martin and Jack Layton have done this. They both linked SSM to the Charter; i.e., defined a social decision (SSM) as, not a political or social issue, but instead as a legal statute (human rights).
What Sopinka pointed out, was that if you merge these two realms, and subvert the legal to political pressure - then, 'the judicial system will be less capable of telling the majority that it is wrong...and this means the end of the rule of law".
Posted by: ET | 2005-03-15 8:52:12 AM
"...glowing editorializing of the "Warren era"."
The man was versatile, you must admit. From interning Japanese-Americans to chairing the commission investigating the assassination of JFK, he had range.
Posted by: Charles MacDonald | 2005-03-15 10:03:09 AM
"and making decisions according to whether a particular result is rational, logical, consistent with past practice, appropriate in light of liberal democratic principles and morally defensible. These are legal determinations." This is bull. This is the political ideology Scalia is railing against. It is the insipid unrelenting excuse /justification for liberalism. It is the rights-based nonsense that is leading to the fundamental destruction of Western Christian civilization. As Burke and Hayek, traditional conservatives, emphasised time and again reason and logic are impotent. It is tradition, long hewn through evolution that must be society's foundation. Nellie McClung and the Famous Five, would role over in their grave if they knew the Persons decision was the basis upon which modern day courts "rationalised" SSM or that modern feminists embrace the rights to abortion.
Posted by: DJ | 2005-03-15 12:33:01 PM
Ahh, DJ - how insightful and astute that you conclude that a Chief Justice of Canada, Sopinka, talks 'bull' and that 'reason and logic are impotent'. You totally misunderstand Sopinka and his insistence on the separation of the political (emotive) and the legal (rational). Your denigration of reason and logic means that a people has no ability to examine its own normative behaviour, no ability to develop new behaviour...which just might be more just and more ethical.
You opt instead for the status quo, you assert that 'tradition' is the foundation of a society and, since you deny us reason and logic, it is beyond question. But is the status quo, tradition, always the best way? And how did that tradition arise? You exclude reason and logic, so, it must arise from emotion, from popular opinion...immune to logic. Is that the best way for a society to develop - within the framework of emotive reactions??
What if the tradition is, let's say, slavery? There was lots of emotive support in all parts of the world, including ancient Greece. What if the tradition is polygamy? What if the tradition is no vote for women? Well?
Posted by: ET | 2005-03-15 12:48:15 PM
Time and again you portray your weakness, ET, to substantiate your universalistic view. You conflate other world views with the Christian West. Slavery is not in the Christian tradition. As early as the seventh century, Saint Bathilde (wife of King Clovis II) became famous for her campaign to stop slave-trading and free all slaves; in 851 Saint Anskar began his efforts to halt the Viking slave trade. That the Church willingly baptized slaves was claimed as proof that they had souls. It is Muhammad who authorised the taking of slaves.
Again you conflate. It is Islam that welcome polygyny, not Christianity.
Limiting franchise was purposeful. What good has liberalism brought? Now women, who have always been the heavy lifters in Western Christian society are free to act like men; immoral, lewd and drunkenly depraved. In fact the liberation of women has been suggested as a potential cultural WMD (C-WMD) to aid in the destruction of Issie fundies.
Jim Woodhill writes:
"I say that..."W" should make a speech analogous to the one Kruschev delivered at the UN where he said: "We will bury you! Your children will live under Communism." Except in this case (where we are readying an attack with Cultural Weapons of Mass Destruction), "W" would say something like: "We will seduce you. Some day soon, the women of Islam will be posing naked for a PLAYBOY pictorial entitled "The Women Of Islam", with the same pierced nipples and pierced, depilated genitalia (labia, and even pierced clitoral hoods) that our daughters in college are showing off to that magazine's cameras in "The Women Of The Pac Ten" pictorials! Your daughters will become thong feminists, screw a different guy every week, and abort their babies without your ever knowing it happened! Just like ours do!"
After such a statement by the President of the United States, I am sure that even men who really do love Death as much as we Americans love Life would suddenly know what it is to be afraid!"
This is the destructive nature of liberalism. First portray values from other societies as Christian and then condemn them. Secondly, allude to the principle that rationalism is superior to tradition. There is not harm in progress because its rational and logical. Giving women the vote is rational, ergo abortion, SSM, and sexual licentiousnesss is also good because it's "appropriate in light of liberal democratic principles". It's bunk.
Posted by: DJ | 2005-03-15 3:51:52 PM
We have a constitution? I nearly forgot.
Posted by: Dylan Sherlock | 2005-03-15 3:59:17 PM
John Sopinka was a gentleman, a fine athlete (Montreal Alouettes defensive halfback in the 60's) and brilliant advocate and teacher of lawyers, however he was never Chief Justice of Canada. He was appointed to the SCC in 1988 and served until his untimely death at age 64 in 1997. He served under Chief Justices Brian Dickson (1984-1990) and Antonio Lamer (1990-2000)
Posted by: Terry Gain | 2005-03-15 4:25:34 PM
Since the Vriend decision, I have been saying, "We can have a constitution or an activist judiciary, but not both".
I mostly said this to myself since it sounds too crazy to say publicly. Well, agree or not, if a supreme court justice says it, it can no longer be deemed beyond discussion. Thank you, Mr. Scalia for bringing the truth back into the realm of reasonable discourse.
Posted by: Pete E | 2005-03-16 4:13:48 AM
I stand corrected on Sopinka; he was a member of the Supreme Court for 9 years (1988 until his death in 1997) not its Chief Justice - who were, as Terry Gain points out, Dickson and Lamer.
That doesn't change my point, which was his very astute article, which recognized the differences in function between the political and legal realms. These differences aren't new; they've been discussed since the time of Plato and Aristotle and they remain as important now as then.
The differences are focused on different agendas, e ach of which has their role in society. The political agenda is motivated by current opinion and its activism, focusing on issues that are not inherently right/wrong but are social decisions. These include SSM, despite Martin's and Layton's attempt to turn it into a human rights issue (i.e., a non-social decision)and they include, as Scalia so succinctly points out, abortion, the death penalty, etc. These are social decisions, to be made within the political arena.
The legal agenda is quite different. It doesn't and shouldn't decide - for the whole society - the particular way in which that society functions. The people of that society have to do that; they can't, as Scalia points out, leave it up to '9 judges'. That's authoritarianism rather than democracy. And, these social decisions have to be open rather than closed; they have to be kept open to further political discussion. That's what I keep saying about bilingualism. It's a political decision not a legal (human rights) decision and therefore, must not be removed from democracy, must not be removed from further analysis and discussion.
The legal agenda is more basic; it operates within a focus on whether a situation, as Sopinka points out, exists within the democractic principles of the state (equality, due process, accountability) and within a moral legitimacy (which rests on the same triad).
If you merge the two - you are essentially merging the particular with the universal and saying that the two are identical. So, as Scalia points out, personal policy preferences (the particular) become redefined as universal. That's not democracy.
Posted by: ET | 2005-03-16 6:29:17 AM
Scalia's as activist as any judge. http://tinyurl.com/63w3f
He just prefers nutty right wing activism.
Posted by: A Hermit | 2005-03-16 10:53:04 AM
ET, I think you are creating a bit of a dualism between politics and legalism. They are not diametrically opposed and distinct from one another. Instead, the legal, a constitution, is created by the political, the people, to entrench existing rights, not create future ones, which is why it would be absurd to think that people creating a constitutional amendment today could be responsible for the right of euthanasia tomorrow, since the people did not consent to that in the constitution.
Scalia is all about original meaning and intent of the text. In my opinion, Scalia is merely arguing that the 5 judges did not base their argument in legal reasons, but political and consensus reasons -- which is not the function of the judiciary (to try to determine consensus of the people)
Posted by: Jonathan M | 2005-03-16 12:05:32 PM
ET, I think you are creating a bit of a dualism between politics and legalism. They are not diametrically opposed and distinct from one another. Instead, the legal, a constitution, is created by the political, the people, to entrench existing rights, not create future ones, which is why it would be absurd to think that people creating a constitutional amendment today could be responsible for the right of euthanasia tomorrow, since the people did not consent to that in the constitution.
Scalia is all about original meaning and intent of the text. In my opinion, Scalia is merely arguing that the 5 judges did not base their argument in legal reasons, but political and consensus reasons -- which is not the function of the judiciary (to try to determine consensus of the people)
Posted by: Jonathan M | 2005-03-16 12:05:32 PM
In reply, I'm not saying that the duality between the political and legal realm is oppositional. First, this would equate them except in value (plus/minus). And second, this would add a value to their operations (the value of opposition). I'm not saying that; I am saying that these are two realms of decision-making in a society and that they have distinct and different mandates.
The legal deals with the basic rights, i.e., the universal or general rights and as such, is 'atemporal', in that these rights should exist both now and yes, in the future. The political deals with current social values - such as euthanasia (which would not be articulated in the legal mandate). The issue of a social value (same sex marriage, abortion, euthanasia) would have to be discussed within the political or communal scenario, and agreed to by the community. It would be wrong to reject that discussion and agreement of the people...which is what Martin/Layton are attempting to do re SSM.
Then..when the population have made a decision on these socially determined values, the legal system can take over, and check whether these new values contravene the legal statutes of the society. If they do- then - the legal might have to tell the political that 'you are wrong' (Sopinka's On telling the majority that it is wrong'). If the majority insists..they might have to change the constitution!
Posted by: ET | 2005-03-16 12:38:58 PM
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