I love some of the egghead blogs around. There’s nothing like elevated discussion to make one feel downright elitist. Well, recently a coupla pretty smart hombres (if I do say so myself) went toe-to-toe over the judicial style of Supreme Court Justice Antonin Scalia. What follows is a reprinting of that debate, starting with the article and the comment that set it off…

From the San Francisco Chronicle…

Justice Antonin Scalia on Monday bemoaned the Supreme Court's willingness to decide political questions such as the death penalty and abortion and predicted as a result a tough confirmation fight for the next nominee.

Scalia, who made no mention of possible retirements on the court, said judicial appointments are becoming increasingly bitter because justices are improperly deciding morally charged questions that are best left to elected legislatures.

"Each year, the confirmation of judicial appointments grows more intense. One shudders to think what sort of turmoil will greet the next appointment to the Supreme Court," Scalia told an audience of 60 at the conservative Ethics and Public Policy Center.

"The lesson is: One way or another, people will have their say on significant issues of social policy ... and judges will be made politically accountable," he said.

In the coming term that begins Oct. 4, the high court will hear several cases involving the death penalty, such as whether states can execute juvenile killers. Several constitutional challenges to the Partial-Birth Abortion Ban Act are also expected to make their way up to the Supreme Court.

Scalia, who was appointed to the court in 1986 by President Reagan, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. He said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process.

President Bush has said if he is re-elected he would appoint justices, such as Scalia or fellow conservative Clarence Thomas, who strictly interpret the Constitution. Scalia also has been mentioned as a possible candidate for chief justice should William Rehnquist, who turns 80 on Oct. 1, retire.

"You want the death penalty? Persuade your fellow citizens" to pass legislation or a constitutional amendment, Scalia said. "You don't want abortion? Persuade them the other way. ... Judges have no more capacity than the rest of us to determine what is moral."

Scalia, however, declined to comment on a House bill that would strip the Supreme Court's authority to hear cases involving the Pledge of Allegiance and whether the words "under God" violate the separation of church and state. The bill, which is expected to be voted on this week, would give that review only to state courts.

Earlier this year, Scalia was forced to recuse himself from a pledge case after complaining in a public speech that courts had gone overboard in keeping God out of government.

"If they're moving through Congress, I probably shouldn't comment on them, and I won't," he said of the legislation.

Dennis - See, this shows exactly, yet again, the problem with Scalia. He thinks that morality is constructed by the democratic process, which is to say there are no intrinsic moral laws to guide all of humanity, including supreme court justices. I find that quite troubling.

Barry - Scalia's point was not that there are no intrinsic moral laws, only that judges are no better than the common folk at understanding those laws. Accordingly, democratic votes on issues of morality are preferable to a judicial dictatorship, of either the left (see Ginsburg) or the right (what you, apparently, want).

Scalia's point, once again, is that, simply because he wears a black robe does not make him more apt to judge morals than anyone else. As such, it is immoral for him as a judge to impose his vision upon those other people.

Dennis - Actually, the point is that none of us human beings determine what is moral. Morality is what it is, and it's not subject to anyone's opinion, whether Supreme Court Justice or Joe Sixpack. Scalia has a long trail of espousing this "whole theory of democracy" misconception.

You're skirting with moral relativism with this "impose his vision" thing of yours. Scalia's constitution, unfortunately, is an empty vessel not secured by a moral foundation. It's not a question of imposing a vision, but of applying the constitution in a way consistent with the rights it secures and the powers it enumerates. Justice Thomas, on the other hand, understands that the rights the constitution secures are inherent to all mankind, as expressed in the Declaration of Independence.

By rejecting natural right, Scalia fundamentally misunderstands republican government and its proper role in securing our rights.

Well, at least he is on the right side in the vast majority of cases....

I love you conservatives who accuse us Straussians of wishing for a tyranny of the judiciary! This is fun stuff!

Barry - Morality may be, but the point remains that a judge still has no better a claim to know what it is, rather than that it exists, than anyone else.

Accordingly, the best approximation is, in fact, a general societal consensus- and not of the "emerging standards" so often cited with no actual evidence, but of actual consensus, as espoused at the ballot box.

The Declaration of Independence, while an important historical document, is not law in the United States, or anywhere else in the world, for that matter. All rights due a citizen of the United States must be found within either the Constitution or the general laws of the nation. Even liberals recognize this, which is why Roe v. Wade is allegedly a 14th Amendment case, rather than some amorphous "natural right."

The Constitution, when you read it for itself, is a radically amoral document. Rights are not conferred out of the dignity of man, but rather as part of the status of the individuals as citizens of the United States, hence the ease with which it excludes slaves and Indians not Taxed. It is not a declaration of rights, but rather of privileges of citizenship, unique to the American people.

In fact, it rejects any notion of natural rights- if you notice, even in the Preamble (also not legally binding), the rights inhere and flow from "We the People of the United States," not from our status as members of the human race or from God or any other higher power. Also, the Constitution was by the people of the United States for themselves and their Posterity. It is not, and never was, a document expressing the worldwide rights of man- if you want that, consider the UN Charter. It is a fundamentally nationalist, rather than humanist or internationalist, document.

The Constitution is not a moral document- rather, it is a framework for the functioning of a government and a citizen body which is, itself, entrusted to make moral decisions, based on whatever ideals it desires. Scalia simply states the obvious.

Dennis - Sure, a judge has no better claim than anyone else to know absolutely what is moral and what is not. But isn't any decision a judge or anyone else makes is a judgment on moral questions? Doesn't every decision rest on what is good and what is bad?

The constitution does not explain every single conceivable question under the sun. Our founding law does not dictate what is right in every circumstance, and we thus necessarily do not have simply a government of law, we to a great extent have a government of men. As Publius famously wrote:

"If men were angels, no government would be necessary. If angels were to government men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Scalia would have all questions not expressly decided through the constitution decided democratically. Hence, he does not concern himself with the fact that there was a high degree of wisdom, intelligence, virtue, etc. that produced our constitution that makes it great, that the constitution is secured by certain principles understood by sober and prudent minds that are the basis for the powers enumerated. He would have any amendment rightly voted on by the people to be as legitimate as those critical rights placed into the document by prudent and wise men.

Right, the Declaration is not binding positive law. Rather, it expresses the rights of mankind that are from the laws of nature and nature's god, true and just everywhere and always. This is the essence of what separates the United States from every country this planet has ever known, and what makes us great. One is not conferred certain rights because one is a citizen of the United States, one has those rights as a human being, but they will be secured by the condition of being subject to the laws of our great nation.

Roe v. Wade doesn't even rest on the language of the 14th amendment. It's complete rubbish for its rejection of the equal natural rights of all human beings, which is covered by its ridiculous speculative ruminations on "emanations" and that nonsense.

Our constitution is not perfect; it was crafted out of compromise. The acknowledgment of a temporary inequality between races was for the greater long-term good that our political system would bring. Political prudence often requires such compromises.

I submit that your understanding of the preamble is completely false. In no way does it reject any notion of natural rights. To the contrary, states that the constitution establishes "Justice," and that it secures the "Blessings of Liberty." This is an explicit acknowledgment that what Justice is, is set prior to any particular political construct. I don't see the constitution define "justice" anywhere. How could this have any meaning whatsoever if not by an understanding of natural right? And who confers "Blessings of Liberty"? Are we blessed by the people who gave us our laws, or by nature and nature's god? Our constitution does not attempt to secure the rights of mankind, so, sure, it's not idiotic like a world government that UN boosters would envision. However, that has no bearing whatsoever on the question of whether those things that it does secure are good and true, everywhere and always.

At least I believe there's hope for you and Justice Scalia, Mr. Barry. I could never have a discussion like this with a flaming liberal, which is why I and other “elitists” relish the opportunities to attempt to enlighten our fellow conservatives.

Barry - No, it doesn't.

Most judging has nothing to do with what is right, but rather simply what is. That's why, after all, the first step in statutory analysis is "plain meaning" rather than the policy implications of it. Also, what's moral about determining whether one party owes money to another on an insurance contract? These are the vast majority of judges' work.

You're exactly correct that the Constitution doesn't address every question under the sun- it doesn't address most, even. That's why the remainder of the questions are left up to laws. These laws are not created by judges, but by the people, through the legislature, as Scalia correctly notes.

Further, it is rather interesting that you're unwilling to accept modern democratic judgments in favor of prior ones, simply because they are prior to our own time. Sure, you include some empty praise of the Founders, but your actual beliefs come through in the statement that "[Scalia] would have any amendment rightly voted on by the people to be as legitimate as those critical rights placed into the document by prudent and wise men."

This is such a glaring dismissal of our own body politic and constitutional scheme that I can barely begin to comment.

You're missing my point on the Declaration- my point was that, while Jefferson and those who signed it expressed those ideals, those ideals have never been an explicit part of American law sufficient to justify your demand for judicial invention of nonexistent rights. The rest of your paragraph is an appeal to human rights, much like the pabulum that comes from the United Nations.

While you might believe that all humans have rights, that these need to be secured by a government betrays that notion. If these rights cannot exist without the protection of a nation, they are dependent upon that nation, and cannot exist beyond it.

Roe v. Wade paid lip service to "substantive due process," a right, much like your supposed natural rights, nonexistent under the Constitution.

I'm not sure what style of English you speak, but "establish" is a word of foundation- where there was not before, now there is. And it is quite clear from the language that the government being established (that is, the social contract among the citizens, you know, the ones you don't trust to govern themselves, instead instituting moral Archons) is what confers the Blessings of Liberty, not nature, which is notoriously brutal and unfair.

Generally, you're blinded by the secular paganism that worships "nature and nature's god." You might want to consider Hobbes' observation that life is nasty, brutish and short when you think about whether anything from nature is desirable. In fact, I submit, government, and civilization in general, is an explicit rejection of the natural in favor of the artificial, of the natural law of the jungle for the laws of men, of chaos for order.

In such a system, men most rule themselves, as Scalia says. He does not want to be a king, as you would crown him.


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