October 5, 2012

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy."

"Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

And it's easy to reel off statements like that if you're Antonin Scalia. He's got a theory that makes so many of the cases that are hard for others easy. And he seems to have a grand time traveling about telling people so.

83 comments:

Rob said...

As a matter of Constitutional law they ARE easy. However, because the cases are difficult in ways not related to the Constitution, some of our moral betters feel they must twist the Constitution beyond recognition.

mccullough said...

Scalia's pretty funny. Although I'm pro-abortion rights and anti-sodomy laws and pro-gay marriage, Scalia's view is pretty appealing.

Basically, just ask someone when they think laws allowing marriage only between one man and one women became unconstitutional: 1789? 1868? 1900? 1930? 1950? 1980? 1993?

The Crack Emcee said...

Smartest justice we've got - by far.

The Mitt Romney-debating-Obama of legislators,...

Victor Erimita said...

He also is quite good at making the point that we have a legislative process for changing laws for changing times, without pretending that the Constitution authorizes or prohibits things it clearly doesn't. But that would require backing down from the unfettered narcissism of the time that allows people to disregard the strength of a constitutional system in order to get what they personally think is the right thing, right now. Democracy and the legislative process are just so slow and cumbersome for people who know they're smarter than the benighted masses and don't want to wait for them to catch up.

Revenant said...

You can make an ninth amendment argument that there is a right to sexual freedom or to abortion. But he's right that the death penalty is an easy one; the Constitution explicitly refers to capital crimes and the conditions under which they can be prosecuted.

I think the death penalty is (in most cases) a a terrible idea -- but it is an entirely constitutional terrible idea.

Patrick said...

He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.

This imaginary justice, Scalia continued, announces that it turns out " 'the Constitution means exactly what I think it ought to mean.' No kidding."

jimbino said...

Since when does the fact that something has been the law in every state for 200 years mean that it's Constitutional?

Every one of those laws may have been unConstitutional from the very beginning, only to first be challenged after 200 years.

Patrick said...

Rev is right. Lots of terrible ideas are quite constitutional.

rcocean said...

Yes, it is easy. Scalia is an honest judge.

People Ginsberg and Breyer simply want to impose their political beliefs on the USA by naked judicial power. Like most liberals they're liars - just like the MSM journalists who tell everyone their "objective".

As Scalia states, you want legal Abortion, just get the US congress or your state legislature to pass a law. Its not in the Constitution.

Its called democracy.

Ann Althouse said...

Is the correct theory the one that's easiest to explain?

He's made an immense amount of progress with it in part because it's easy and fun to explain and people understand it.

Understanding an argument should NOT be confused with agreeing with it. And yet many people come away feeling convinced because they have understood, and they don't understand what those other characters are doing, and they're not so willing to travel about explaining it to the layfolk who are only going to make puzzled faces and ask uncomfortable questions.

mccullough said...

Rev,

It's tough to look at unenumerated rights without looking at whether or not there's any historical recognition or tolerance of them. The position against the right of abortion or sodomy is that they had been historically criminalized.

But the rights of parents to direct the education and upbringing of their kids had been historically respected.

Personally, I think it'd be great if federal courts started recognizing the right to gamble and smoke pot and other leave me the fuck alone activities. But unfortunately, most judges, even the liberal ones like Ginsburg, are pretty much school marms when it comes down to anything but sex and abortion.

rcocean said...

Maybe we can't understand those other "theories" because they don't make sense.

rcocean said...

Complexity in law, theology, and even the tax code is usually just a cover for something else.

Partly, its self-interest. If it wasn't so "complicated" we wouldn't need 'experts'

Partly, its because its more interesting - for those involved - to make it "complex".

Titus said...

So I guess he will be a no vote on fags getting married?

Hagar said...

What Rob, Victor, and rcocean said.

mccullough said...

Ann,

It's a convincing argument because you have 300 million people who can't agree on stuff, it's not written in the Constitution, and the historical practice either criminalized it or not. The fact that it's easy to understand is a bonus.

What's hard to understand is why 5 out of 9 old people who none of us got to vote for get to tell us what we can or can't do even though nothing in the Constitution addresses it and a majority of people in a state or the country support it or oppose it.

Worse, when it comes to stuff like the "evolving standards of decency" they just ignore that a majority of the country has no problem with executing child rapists, including Obama. So why should anyone care what 5 old people think?


Brennan said...

Since when does the fact that something has been the law in every state for 200 years mean that it's Constitutional?

I can overturn just about every single law based on this question.

James Pawlak said...

The ONLY thing which keeps me from supporting and demanding the death penalty is our lawyer-perverted court system and a means of exactly determining guilt/innocence (eg By some sort of "brain wave" machine to determine which witnesses are telling the truth, lying or something in-between.

If such is found, I suggest a return to the constitutional short-drop or no-drop hanging as used in 1789 and that for all homicides---Including those by intoxicated use of a motor vehicle.

Palladian said...

He's wrong about the many laws against "homosexual sodomy"... many of those laws that were used to persecute men who had sex with men were non-specific anti-sodomy laws that could be applied to any sexual activities that law enforcement decided were unnatural, including many forms of male/female sexual activity that are today regarded as commonplace, such as oral sex.

Shining Wit said...

Let's not forget that Brown I was the first major "living constitution" case. And Shelly v Kraemer was an absurdly reasoned decision - overlooking as it did the state action doctrine.

Originalism has the best claim to being a neutral selection principle, but people like Althouse dislike the probable results. (I might, too- look at the paper money cases.) A results oriented jurisprudence is fundamentally unstable, though - just a form of temporizing.

mccullough said...

Titus,

Scalia will say it's totally fine if the people in New York vote in gay marriage and it's totally fine if the people in California vote no gay marriage. The Consitution says nothing about it, and the historical practice is that the states have always defined marriage as one man and one woman until recently. Also, since most states don't even currently allow it (and only a handful have it as a result of legislation), there's not even a recent consensus.

On the bright side, unlike Ginsburg or Breyer, Scalia would say that Congress has no power to ban gay marriage in any state. To Ginsburg and Breyer, since marriage has an "effect" on interstate commerce, Congress has this power.

If progressives only realized that Scalia and Thomas judicial views allows them the greatest opportunity at liberty of the current 9 old folks, they might come around to them.

clint said...

In fairness, his theory makes many other decision really, really hard.

I mean, how do you appeal to a long history of state laws when determining what privacy rights arise in the encrypted transmission of data over a third-party-owned wifi network?

Palladian said...

And yet many people come away feeling convinced because they have understood, and they don't understand what those other characters are doing...

Probably because most of those "other characters" don't understand what they are doing either.

Titus said...

Homosexual sodomy. That term is so old school but I love it.

What about heterosexual sodomy? They never get any mention.

mccullough said...

Jimbino,

Since the Constitution guarantees equal protection to all, it's unconstitutional for any one person to pay any more than any other person in income taxes. We can't even have a flat tax, because with a flat tax, people who earn more pay more. This is unequal.

Therefore, it's unconstitutional. Now all I need is 5 votes from the Supreme Court.

David said...

He trusts representative democracy to be the best barometer of social change, and make decisions in the most publicly acceptable manner. This was the underlying idea of our nation.

You don't like the law? Change the law.

mccullough said...

David,

The public are morons. They need to be ruled by the enlightened Justice Sotomayor. She knows what's best.

Dante said...

It's easy to understand what people thought 200 years ago?

mccullough said...

Titus,

There are two supreme court "homosexual sodomy" cases. The first one from 1986 was oral and the one from 2003 was anal.

I always disliked that they didn't break down sodomy into its two holes

mccullough said...

Dante,

It's really easy to see that the constitution doesn't have the words abortion or sodomy in them.

It's also easy to see that it says "capital" and deprivation of "life."

Chip Ahoy said...

mccullough mentioned it.

Jay Retread said...

Scalia would be a much happier camper if he was on the Supreme Court in 1896 when he would have been part of the majority.

rcocean said...

So why are 5 un-elected Ivy league lawyers deciding whether women can have an abortion or whether Gays can marry?

Simple. Liberals like it that way. They understand they can ram their minority views down the throats of the American public by sheer judicial power. And they don't care how they do it. "Just win baby" is their philosophy.

As for conservatives, some of them are "stuck on stupid" and always have been. Others, who care only about money, think of the SCOTUS as the last refuge against the "mob" trying to take their money. So they support the SCOTUS because - they think - it protects their property interests.

The SCOTUS have never been about 'protecting our civil liberties' (tell that to the Japanese-Americans) - its about the power elite doing an end-round democracy to impose its beliefs and interests.

Coketown said...

Homosexual sodomy is not easy. At least not the first time. Believe me.

I don't know how easy abortion is. Seems pretty straight-forward. My old roommate's girlfriend ruined my old sofa by having an abortion on it. She took her abortion pill then spent all day sweating and puking and I think bleeding all over the place. Most of the sweating was on my sofa. All he had was a futon so, you know, I guess when you're killing your baby you want to be cozy. Then she went to the emergency room.

Yeah, I know. Women's health. Irony.

Dante said...

It's really easy to see that the constitution doesn't have the words abortion or sodomy in them.

Maybe the issue isn't that it is easy for Scalia on these "hard issues". Maybe the issue is that it's hard to make the constitution apply to things that the constitution does not protect (such as Abortion, gay marriage, etc.).

Sloanasaurus said...

They are easy cases. None of them are in the bill of rights. It's up to the states to legislate otherwise.

Marshal said...

mccullough said...

If progressives only realized that Scalia and Thomas judicial views allows them the greatest opportunity at liberty of the current 9 old folks, they might come around to them.


Well, mostly progressives would have to care about liberty first.

Jay Retread said...

Thank god that neither Obama or Romney will appoint another fool like Scalia or Thomas to the Supreme Court. What an ugly world Scalia and Thomas would inflict on America if they had half the chance.

Palladian said...

Maybe the issue is that it's hard to make the constitution apply to things that the constitution does not protect (such as Abortion, gay marriage, etc.).

The Constitution doesn't protect any kind of marriage. The word "marriage" does not appear in the document.

And it shouldn't.

mccullough said...

Dante,

Of course the constitution protects abortion. You can't be deprived of liberty without due process. Even if there's a law on the books giving you notice that abortion is illegal, there's a substantive component to this due process thing. It protects a woman's right to abortion. It doesn't protect your liberty not to pay child support though if she decides to have the baby even if you didn't want it. You're a man. Women and children can be careless, not men. So sayeth the Constitution.

As for gay marriage, of course you can't prohibit it. Everyone has the right to equal protection of the laws. But if you want to have 10 wives at the same time, it's not equal to forbid that.

Jay Retread said...
This comment has been removed by the author.
mccullough said...

Jay Retread,

If it weren't for Scalia, you'd be in jail for burning the US flag.

If there were more justices like Thomas, Congress wouldn't have the power to tell the DEA ti uproot your plants and throw you in jail for smoking your prescription weed.

Also, without Thomas and Scalia, I wouldn't be able to have a gun in my house to protect losers like you from breaking in.


Eric said...

I think the death penalty is (in most cases) a a terrible idea -- but it is an entirely constitutional terrible idea.

The strength of a constitutional republic is the separation of the mechanisms for creating policy and the policies themselves. And of course this separation has been shot full of holes over the years by well-meaning justices.

Is it any wonder no question of any importance to anyone is actually settled until the supreme court speaks on the issue? When did that start - early to mid 20th century? Before then?

Jay Retread said...

Scalia would not extend the equal protection clause to women, after all for over one hundred and fifty years women under the U.S. Constitution were not treated as the equal of men. I wonder if Scalia supported the ERA back in the day? I suspect he did not.

mccullough said...

Jay,

Women still aren't treated the equal of men. If they have unprotected sex and get pregnant, they have a constitutional right to a do-over. Men don't.

Ann Althouse said...

"Complexity in law, theology, and even the tax code is usually just a cover for something else."

And what method are you using to determine whether complexity is true or just a cover for something else?

Or do you want to proceed on the assumption that whatever is hard to understand is not worth understanding?

Jay Retread said...
This comment has been removed by the author.
Ann Althouse said...

"So I guess he will be a no vote on fags getting married?"

Since he's not in the legislature, he will not be called upon to vote yes or no on that.

Eric said...

Scalia would not extend the equal protection clause to women.

If the people who enacted the 14th amendment meant for it to apply to women, why did women have to wait 53 years for another constitutional amendment which gave them the right to vote?

dc said...

Titus

He might say that gays can get married,but they can't have sex afterword.

Ann Althouse said...

To make my last comment more clear, here's Scalia in Lawrence v. Texas:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change."

Carol said...

well see abortion and homosexuality are modern and we know more about modern stuff now because we're modern. And, science.

They didn't know about such things back in the day.

Jay Retread said...

Eric wrote-
"If the people who enacted the 14th amendment meant for it to apply to women, why did women have to wait 53 years for another constitutional amendment which gave them the right to vote?"

Because there where justices like Scalia on the Supreme Court during those periods who hid behind their extremely narrow interpretation of the U.S. Constitution to protect their racist and unjust institutions.

The U.S. Constitution is a road map to greater freedom and a more just society. For Scalia it is a contract to restrain the chains that keep his world view the dominate one.

mccullough said...

Eric,

In fairness, "equal protection of the laws" didn't refer to political rights like voting. That is why the 15th Amendment itself guarantees blacks the right to vote. If "equal protection" covered it, then there'd be no need for the 15th Amendment.

Equal protection of the law guaranteed the freed slaves the right to enforce contracts, own and bequeath property, etc. It also required the states to arrest and prosecute those who committed crimes against blacks.

mccullough said...

Ann,

You're comment was clear. Everyone here understands Scalia's position.

We're not one of your students.

AF said...

Since he's not in the legislature, he will not be called upon to vote yes or no on that.

Of course he's going to vote on the issue. Gay marriage is coming to the Supreme Court, and the Court operates under a majority-rules system.

mccullough said...

Marshal,

Excellent point. Progressives is a noun that means people who like to tell other people what to do based on their belief that they know what is best for everyone. I sometimes forget that.

AF said...

He's got a theory that makes so many of the cases that are hard for others easy.

His theory also gives clear answers on issues like segretation (OK) and affirmative action (also OK). But Scalia doesn't follow his theory on those issues.

Scalia's theory is a bad one, and he doesn't follow it consistently.

mccullough said...

AF,

Ann is a law professor. She's more like Elizabeth Warren than she's like you. Sometimes it's obvious, sometimes it isn't.

Alex said...

This Scalia is a fool & a tyrant. This is what you get with lifetime appointments.

AF said...

AF, Ann is a law professor. She's more like Elizabeth Warren than she's like you.

mccullough, first, law professors are famous for saying outlandish things about the law (Professor Althouse will agree with me on this), and second, you don't know who I am.

mccullough said...

AF,

Actually, to be an originalist, you would say that the state's can't segregate but the federal government can. I agree with you on Scalia and Thomas on affirmative action. They are not being consistent with their judicial philosophy.

Doesn't mean their philosophy is wrong though.

Scalia's theory is fine. You just don't like the results because you can't convince legislators or voters in states you would never live to agree with you. The fault lies not in the stars, but with you.

Alex said...

Some subscribe to the theory that the SCOTUS basically rules in ways that are synonymous with the general public opinion. However when the death penalty was banned in 1972, was that according to public opinion?

mccullough said...

AF,

I don't care who you are. As Ann would say, it's not an interesting question.

AF said...

I don't care who you are. As Ann would say, it's not an interesting question.

I agree. You brought it up.

mccullough said...

Alex,

There are a number of amendments that overturned Supreme Court rulings on constitutional issues. These old men and women don't have their finger on the pulse.

I would say these days they are probably smart enough not to create another culture war by striking down the marriage laws of more than 40 states and create such a backlash. I do think they've learned their lesson from Roe v. Wade.

Marshal said...

Jay Retread said...
The U.S. Constitution is a road map to greater freedom and a more just society. For Scalia it is a contract to restrain the chains that keep his world view the dominate one.


There's never been a sentence written at Althouse that expresses less understanding of the political environment than these.

Jay Retread said...

Scalia knows he is going to go down in history as being one of the bigger putzes to serve on the Supreme Court. It is not surprising that he is now doing the typical dick move and double down in a clownish fashion. If he was truly a serious person he would be presenting his case in public in a respectful manner. But instead he is just making a spectacle of himself. What a dick.

Jay Retread said...

As evidence this is all now just a dick move for Scalia, he uses the word "Sodomy" every chance he gets. What an ugly goofball he has now become.

mccullough said...
This comment has been removed by the author.
mccullough said...

Jay,

Your last comment was 69

Paul Zrimsek said...

Ann is a law professor. She's more like Elizabeth Warren than she's like you

Let me guess... 1/32 Delaware?

The Crack Emcee said...

It's easy to reel off statements like that if you're Antonin Scalia. He's got a theory that makes so many of the cases that are hard for others easy. And he seems to have a grand time traveling about telling people so.

You once told me it was "ugly" to want to be right all the time, as though there's anything to being wrong - except around morons. Now you make it sound like there's something wrong with "The Joy of Knowing." There isn't, except how hard it is to get others to join in it.

I get dissed all the time for my dissection of cultism in our lives. This happens because others can't see it, but I "know" I'm right - I can explain it better than they can their disagreements, and the evidence to bolster my view is everywhere. It's like this:

Cultish thinkers see a sunset. I see the world spinning though the universe.

You only see your stupid lawn that needs to be cut. I see this in a blade of grass.

Who's having more fun?

Except for the pain inflicted by idiots for doing so, knowing is better than ignorance any day,...



The Crack Emcee said...

rcocean,

Complexity in law, theology, and even the tax code is usually just a cover for something else.

Partly, its self-interest. If it wasn't so "complicated" we wouldn't need 'experts'

Partly, its because its more interesting - for those involved - to make it "complex".


Cultists do this a lot. The more convoluted the message, the less understandable the practitioners are, the more people believe them. It makes cult bullshit seem like privileged information, like science and medicine.

Being dumb is a very high-minded pursuit,...

hombre said...

Don't I recall that scholars virtually unanimously wrote that Roe v. Wade could not be plausibly justified under the Constitution?

It is only the rise of post-modern revisionism that has turned the tide.

Revenant said...

His theory also gives clear answers on issues like segretation (OK) and affirmative action (also OK).

Well, no, because the 14th amendment makes it crystal clear that (a) the federal government is forbidden from discriminating on the basis of race and (b) Congress is allowed to pass laws to force the states to do likewise.

Hagar said...

Re. Griswold and Lawrence: It used to be unlawful to act out a "crime" in order to get cook up a court case.
All the people involved here should have been cited for contempt of court.

Browndog said...

Laws are derived from norms, norms from morality.

No one protests more than the immoral.

Browndog said...

Jay Retread said...

everything possible to turn a worthy discussion into a clown act.

Eric said...

The U.S. Constitution is a road map to greater freedom and a more just society.

No, it's not that at all. It's a contract between the government and the people that dictates the rules for how policy is enacted. There are two mechanisms for changing the constitution, and neither of them is changing public opinion as interpreted by the courts.

mandrewa said...

Yes, this is what Supreme Court justices were expected
to do. The majority of the people, probably the great
majority of the people, who wrote and voted for the
Constitution, would have agreed with Scalia.

The Constitution was intended to remove as much as power
as possible from national elites and push it down to the
different states while still at the same time having
a country that could collectively defend itself from
external enemies and, not so incidently, share a common
market.

It was expected and intended that 95% of what mattered
to people would be decided at the state level by legislators
or governors who were elected at the state level, or
the agents of these elected officials.

It was expected and intended that the states might be
quite different. In fact this was a key feature of the
whole design.

There are very few constraints on what states can and
cannot do in the Constitution. It's implicitly understood
that different states with different laws and elites
might be in conflict with another. One of the handful
of restrictions on the states is that they are not allowed
to make war on one another. Another is that they are not
allowed to treat differently than their own the products
of other states.

One of the key rights articulated in the Constitution is
the right of any citizen of the United States to move to
another state without restriction, either from the state they
are leaving or going to.

Thus people are given, and expected to use, the right to
vote with their feet, and leave a tyrannical state -- or
even one they merely disagreed with.

Thus it was perfectly constitutional for the Mormons to
set up a state that encouraged polygamy, even though every
other state disagreed with them. This was exactly the sort
of experimentation that the Constitution was intended to
allow. This doesn't mean the people who wrote the
Constitution approved of polygamy, because they didn't.
What it does mean is that the elite who wrote the
Constitution, remarkably, in fact astonishingly, and totally
unlike any other elite I'm aware of, did not believe they
had all the answers.

Reading this one might assume that the people who wrote
the Constitution had an absurd faith in democracy since they
gave so much power to it. Well one would be wrong. They
expected much nonsense and many stupid ideas. And they
were right. But they also expected that a good part of the
timethings might more or less work.

The Constitution was intended as much as practical to remove
power from national elites and split it among thirteen
states. It was also intended to give the citizens of the
United States more power and real choices than any society
previously known to man. The federal government was quite
restricted and limited in its powers. Needless to say in
modern times the Constitution is almost completely ignored
and deliberately misunderstood.

Most law schools, maybe all, piss on the Constitution every
chance they get. They'll deny they do this and likely even
tell themselves that they don't but this is just another
example of the human ability to do Orwellian double-think.

Why the hatred I don't really get. I think these ideas make
marvelous sense.

Smilin' Jack said...

"Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

Actually, it wasn't just homosexual sodomy. Scalia still hasn't answered the question of whether he sodomizes his wife. And according to his theory, we have a right to know.

DCPI said...

In a more perfect world Mandrewa would be a con law prof.