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, April 02, 2007
Limits on Presidential Powers
There’s a debate going on these days about the power of the President. One side argues that the President and the administration constitute one of three co-equal branches of government. Each of the three branches, the Congress, the courts, and the President, are independent. The other side argues that, although the three branches are independent, they depend on each other and each branch acts as a restraint on the others. It’s all about separation of powers and competition among the three branches to limit what government can do.
A specific target of the debate is the power of the President to wage war. The Constitution gives Congress the power to declare war. Congress has the power to raise an army, a navy, and other military organs as needed for the defense of the country and to achieve the national goals. The President is designated as the Commander in Chief. A specific question is whether Congress can place limits on what the President can command the armed forces to do after war has begun. One side of the argument asserts that the President has a free hand to conduct the war in any manner that he believes will best achieve the nation’s objectives in the war. The other side asserts that Congress has not only the power to raise taxes and provide money to conduct the war but also the power to place limits on what the President can do in his conduct of the war.
Scholars on both sides of this argument cite specific parts of the Constitution and precedents from court cases to defend their assertions on the power of the President. No one that I’ve noticed seems to be arguing whether the President should have unlimited power to conduct a war. I mean, not whether the Constitution gives or does not give unlimited power but whether unlimited power is a wise thing.
If a President does indeed have unlimited power to conduct a war, then he (or she) is a despot with respect to war powers. There is no limit on what he or the armed forces can do. The armed forces can capture and torture enemy prisoners in defiance of treaties that the nation has agreed to. The President can continue a losing war long after it is obvious to any intelligent, impartial observer that the war can not be won. The President can send American troops back into battle after a very short time for rest and refreshment. He can wear down and wear out our army by overusing the troops. If the theory of the independent and unlimited President is correct, we, the American people, have no legal recourse under the Constitution to change things. The only legal recourse is the power of Congress to impeach and convict the President and remove him from office. If the President has the support of more than one-third of the Senators, he will not be convicted.
In such a situation the people may rise in revolt against the federal government. We Americans have never taken that course. Our neighbors south of us who have adopted constitutions similar to ours do quite often rebel and force an unpopular or tyrannical or incompetent President to leave office. Our own traditions do not give us that option. All we can do is to wait for our President’s term of office to end. He can not amend the Constitution to give him an extension or to allow him to run a third time for election. In the meantime, dozens of American soldiers and marines will die in his war that he refuses to end.
This is the sad consequence of the application of the theory of the independent presidency. I think that, regardless of what the Constitution and judicial precedents tell us, it is a bad thing for a President to have such unlimited power. The fact that the current President is able to claim such power and get away with it shows that we have a serious defect in our Constitution. I’ll leave it to constitutional scholars to suggest what changes we should make in that document.
A specific target of the debate is the power of the President to wage war. The Constitution gives Congress the power to declare war. Congress has the power to raise an army, a navy, and other military organs as needed for the defense of the country and to achieve the national goals. The President is designated as the Commander in Chief. A specific question is whether Congress can place limits on what the President can command the armed forces to do after war has begun. One side of the argument asserts that the President has a free hand to conduct the war in any manner that he believes will best achieve the nation’s objectives in the war. The other side asserts that Congress has not only the power to raise taxes and provide money to conduct the war but also the power to place limits on what the President can do in his conduct of the war.
Scholars on both sides of this argument cite specific parts of the Constitution and precedents from court cases to defend their assertions on the power of the President. No one that I’ve noticed seems to be arguing whether the President should have unlimited power to conduct a war. I mean, not whether the Constitution gives or does not give unlimited power but whether unlimited power is a wise thing.
If a President does indeed have unlimited power to conduct a war, then he (or she) is a despot with respect to war powers. There is no limit on what he or the armed forces can do. The armed forces can capture and torture enemy prisoners in defiance of treaties that the nation has agreed to. The President can continue a losing war long after it is obvious to any intelligent, impartial observer that the war can not be won. The President can send American troops back into battle after a very short time for rest and refreshment. He can wear down and wear out our army by overusing the troops. If the theory of the independent and unlimited President is correct, we, the American people, have no legal recourse under the Constitution to change things. The only legal recourse is the power of Congress to impeach and convict the President and remove him from office. If the President has the support of more than one-third of the Senators, he will not be convicted.
In such a situation the people may rise in revolt against the federal government. We Americans have never taken that course. Our neighbors south of us who have adopted constitutions similar to ours do quite often rebel and force an unpopular or tyrannical or incompetent President to leave office. Our own traditions do not give us that option. All we can do is to wait for our President’s term of office to end. He can not amend the Constitution to give him an extension or to allow him to run a third time for election. In the meantime, dozens of American soldiers and marines will die in his war that he refuses to end.
This is the sad consequence of the application of the theory of the independent presidency. I think that, regardless of what the Constitution and judicial precedents tell us, it is a bad thing for a President to have such unlimited power. The fact that the current President is able to claim such power and get away with it shows that we have a serious defect in our Constitution. I’ll leave it to constitutional scholars to suggest what changes we should make in that document.
Labels: co-equal branches of government, impeachment, Imperial Presidency, judicial precedent, power debate
