Sunday, April 27, 2008
Justice Antonin Scalia
Leslie Stahl interviewed Justice Antonin Scalia tonight on the program SIXTY MINUTES. The judge comes across in the interview as a pleasant, likeable fellow who loves an argument. He knows that his opinion is the right one and smiles when he says it. Clearly he expects an attempt at rebuttal.
Anyway, leaving aside his personality and his personal friendship with people with whom he disagrees, I believe he has a mistaken idea of the federal constitution. To him the constitution is not a "living" document. It is a "dead" document, and must be interpreted according to the original meaning of the words and the language at the time each part of the constitution was adopted. He is, in his own words, an originalist, or one who believes that the original intent of the writers is the compelling interpretation.
I beg to differ. My father used to tell me that the constitution is a means to an end, not the end in itself. It is a means to achieve a more perfect union and an effective, representative government. The constitution should be reinterpreted in terms of what the framers would decide now, if they were somehow magically brought back to life. The framers were practical men. If they were alive now, there would be some women among them. Justice Scalia himself stated that the opening phrase "We, the people" had a different meaning in 1787 from what it has today. The phrase would not have included Leslie Stahl, or any of the slaves then living, or, in fact, anyone who did not own property.
To be fair, Justice Scalia believes that change in our way of life, our values, etc., should take place by State legislatures enacting laws. The constitution has no reference to abortion, homosexuality, or gay marriage. If a State wants to legalize gay marriage, it can do so. If a State wants to permit, forbid, or regulate abortions, it can do so. If it wants to permit or punish homosexual behavior, it can do so. To extend what I believe to be his philosophy, the federal courts should not be viewed as the last refuge of persons seeking an end to unfair and discriminatory treatment, except in so far as various amendments have been adopted to assure that every man and woman has the right to vote, has the right to free speech, etc.
It seems to me that an important consequence of Justice Scalia's thinking eliminates the legal principle of precedent, or stare decisis. Most legal scholars believe that a previous decision by the Supreme Court has the same legal standing as the constitution itself. The court interprets the constitution for the rest of us. To Scalia, a wrong decision made by the court ten, fifty, or two hundred years ago is still wrong and should be reversed. Actually, I should say a decision he believes to have been wrong should be reversed.
Mr. Scalia is an entertaining and likeable fellow. However, I would not like to have eight other justices just like him on the Court.
Anyway, leaving aside his personality and his personal friendship with people with whom he disagrees, I believe he has a mistaken idea of the federal constitution. To him the constitution is not a "living" document. It is a "dead" document, and must be interpreted according to the original meaning of the words and the language at the time each part of the constitution was adopted. He is, in his own words, an originalist, or one who believes that the original intent of the writers is the compelling interpretation.
I beg to differ. My father used to tell me that the constitution is a means to an end, not the end in itself. It is a means to achieve a more perfect union and an effective, representative government. The constitution should be reinterpreted in terms of what the framers would decide now, if they were somehow magically brought back to life. The framers were practical men. If they were alive now, there would be some women among them. Justice Scalia himself stated that the opening phrase "We, the people" had a different meaning in 1787 from what it has today. The phrase would not have included Leslie Stahl, or any of the slaves then living, or, in fact, anyone who did not own property.
To be fair, Justice Scalia believes that change in our way of life, our values, etc., should take place by State legislatures enacting laws. The constitution has no reference to abortion, homosexuality, or gay marriage. If a State wants to legalize gay marriage, it can do so. If a State wants to permit, forbid, or regulate abortions, it can do so. If it wants to permit or punish homosexual behavior, it can do so. To extend what I believe to be his philosophy, the federal courts should not be viewed as the last refuge of persons seeking an end to unfair and discriminatory treatment, except in so far as various amendments have been adopted to assure that every man and woman has the right to vote, has the right to free speech, etc.
It seems to me that an important consequence of Justice Scalia's thinking eliminates the legal principle of precedent, or stare decisis. Most legal scholars believe that a previous decision by the Supreme Court has the same legal standing as the constitution itself. The court interprets the constitution for the rest of us. To Scalia, a wrong decision made by the court ten, fifty, or two hundred years ago is still wrong and should be reversed. Actually, I should say a decision he believes to have been wrong should be reversed.
Mr. Scalia is an entertaining and likeable fellow. However, I would not like to have eight other justices just like him on the Court.
Labels: 60 MINUTES, abortion, Antonin Scalia, gay marriage, judicial precedent, Leslie Stahl, original intent, Supreme Court
Monday, February 19, 2007
Should we "Win" in Iraq?
The news this morning from Iraq is that although things are still going badly in Baghdad things are looking up in Anbar Province. It is reported that tribal leaders there have switched sides and are now cooperating with American troops and are fighting against the Al Qaeda fighters. Last night on the CBS Program 60 MINUTES one segment dealt with Kurdistan. Kurdistan, a separate region of Iraq, is peaceful and prosperous. Kurds love Americans. Soon, perhaps, trans-oceanic air flights will ply between an airport in the local capital and New York.
I believe the 60 Minutes story. I like to believe the story about Anbar Province, but I know it could also be a planted story by the Bush Administration. But, assuming that all this good news is real, I began to think about the implications. What if Bush's war turns out well for us after all? Will I be happy?
One of my conservative friends, H, accuses me of having such a strong hatred of George W. Bush that I want his adventure in Iraq to fail. At first I simply dismissed such an accusation as an example of H's intemperance and extreme partisanship. Now, I have to admit that he is at least partly right. I do want the adventure in Iraq to fail because success in Iraq would teach the American people the wrong lesson. It would teach them (us, actually) that our military might makes us able to impose our will wherever we choose to impose it. It reinforces the American myth of our moral purity. We are "always right" and we are strong enough to enforce our benevolence on any part of the world that we choose. Victory in Iraq means that it is all right for us to invade Iran and impose our will there. Victory in Iraq feeds our hubris, our sense of virtue and correctness. We will have an empire but it will be a benevolent empire, not like the British, French, and Spanish empires of recent history or the Roman, Greek, and Persian empires of antiquity. We are different from all previous people; we are virtuous, generous, benevolent, brave, powerful, and good.
If, by some miracle, we "win" in Iraq and install a government there that is friendly to us and that at least seems to be democratic, it will indicate to me, at least, that the gods are preparing for our ultimate destruction. To destroy a people, according to the ancient Greeks, the gods first make them insane. Reinforcing our belief in our own invincibility as well as our virtue will make us completely lose track of reality. We will become insane and easy pickings for the gods who would destroy us.
I believe the 60 Minutes story. I like to believe the story about Anbar Province, but I know it could also be a planted story by the Bush Administration. But, assuming that all this good news is real, I began to think about the implications. What if Bush's war turns out well for us after all? Will I be happy?
One of my conservative friends, H, accuses me of having such a strong hatred of George W. Bush that I want his adventure in Iraq to fail. At first I simply dismissed such an accusation as an example of H's intemperance and extreme partisanship. Now, I have to admit that he is at least partly right. I do want the adventure in Iraq to fail because success in Iraq would teach the American people the wrong lesson. It would teach them (us, actually) that our military might makes us able to impose our will wherever we choose to impose it. It reinforces the American myth of our moral purity. We are "always right" and we are strong enough to enforce our benevolence on any part of the world that we choose. Victory in Iraq means that it is all right for us to invade Iran and impose our will there. Victory in Iraq feeds our hubris, our sense of virtue and correctness. We will have an empire but it will be a benevolent empire, not like the British, French, and Spanish empires of recent history or the Roman, Greek, and Persian empires of antiquity. We are different from all previous people; we are virtuous, generous, benevolent, brave, powerful, and good.
If, by some miracle, we "win" in Iraq and install a government there that is friendly to us and that at least seems to be democratic, it will indicate to me, at least, that the gods are preparing for our ultimate destruction. To destroy a people, according to the ancient Greeks, the gods first make them insane. Reinforcing our belief in our own invincibility as well as our virtue will make us completely lose track of reality. We will become insane and easy pickings for the gods who would destroy us.
Labels: 60 MINUTES, American hubris, Anbar Province, Kurdistan, Winning in Iraq
