Justice Antonin Scalia: Requiescat in Pace

Saturday, February 13, AD 2016

23 Responses to Justice Antonin Scalia: Requiescat in Pace

  • I hope Justice Scalia goes straight to heaven. But I fear that that godless man of sin and depravity occupying the White House will nominate a baby murdering, sodomy sanctifying replacement.

  • Which is why the Republicans in the Senate must refuse to act on anyone he nominates to the Court.

  • “Which is why the Republicans in the Senate must refuse to act on anyone he nominates to the Court.”

    With Mitch McConnell in charge, I wouldn’t hold out much hope for that.

  • “Senate Majority Leader Mitch McConnell, R-Ky., indicated the Senate will not move on an Obama nomination.

    “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” he said in a statement.”

    http://www.usatoday.com/story/news/politics/2016/02/13/senate-unlikely-confirm-obama-supreme-court-nominee/80351274/#

  • Well, that’s good news. Let’s hope he sticks to it. I. the event the next President is a democrat and republicans keep,control of the Senate, they need to do some Borking of their own.

  • The Supreme Court has now become a front and center issue for this campaign. The Republic debate tonight should be interesting. I bet Scalia’s name will be mentioned over and over again.

  • I was nice enough to follow one lefty on twitter and I had to block him after he openly hoped Thomas was next. Pure evil.

  • “I was nice enough to follow one lefty on twitter and I had to block him after he openly hoped Thomas was next. Pure evil.”

    But sadly, it is not surprising.

  • God has abandoned us. Like Israel in the Old Testament, God was our champion but we rejected him and He has stepped back, as if to say “you think you got this? Well, OK, but I warn you, Man without God is a stupid, petty, and viscious creature.”

    Scalia has been a champion of the Republic. He and Thomas were the only sure non-Statists on the bench and now that mean-spirited, petty, stupid, short-sighted bastard pretender in the Oval Office gets to turn the Supreme Court into a purely rubber-stamp arm of the Emperor… Just in time for the immigration DAPA case to cement a president’s authority to ignore Congress and wright law.

    I don’t curse often but damn! This is a VERY bad day for the Republic and the convenience of it all is suspicious. If I wasn’t a religious man, I’d be looking at conspiracy.

  • Take my advice — from experience — and avoid Mark Shea like the plague right now. Unless you REALLY want to ruin your Lent by experiencing extreme hatred for another human being.

  • Catholics should organize and demand an autopsy. I don’t trust this administration one bit or the Democratic Party that has sided with every anti God issue their is. The shift in the Supreme Court to a majority anti-God and anti Constitution would be the end of the United States as the founders created.

  • “There” not “their.”

  • During a vacancy, what happens if the Supreme Court is tied 4-4?
    In Scotland, the decision goes against the judge in the chair. In France, the decision below is affirmed.

  • Saw an article arguing that in quite a number of cases, the SC not taking up stuff for the next year actually benefits the President. I imagine that, at best, the President could hope to get a centrist and/or someone without a record or stated views that would cause controversy through the Senate. And if the Dems win both the Presidency and the Senate, the Court will definitely end up big time liberal.

    Doesn’t it then potentially benifit Republicans and conservatism in general more to have another centrist on the Court?

  • Donald R McClarey replied to my question, “The French rule.”

    Thank you for that.

  • There are no such things as “centrists”, in the Supreme Court or anywhere else.

  • Call it….more committed to “excentricities of each case” to quote West Wing. Maybe not fully committed to either living document or orginalist positions, potentially taking positions that lean towards either side depending on moment. Or even just having some views on one side and some from the other.

  • Thinking of the most important of the cases coming up, the immigration case RE: DAPA, it isn’t really about immigration at all, it is really about executive power: “is the Executive Branch an equal power to the other two, the first among equals, or are the other two subordinate to it?”

    Without Scalia, the Court will aim for “first among equals,” which, in essence and due to a non-functioning, partisan legislature, is no longer a Republic.

    Without Scalia, Thomas stands alone, Kennedy, ever anxious to be the lap-boy for the winning side, will write a decision that cements Presidential power over law.

  • A sad day indeed. The man was a lion, and forged anew and vitalized the old principle that the Court was designed to be the least dangerous branch because it merely was to decide cases according to the original public meaning of legal texts, not import subjective social views into the Constitution.

    Better yet, Scalia was a good Catholic, and could be regularly found at Old St. Mary’s at 5th and H in D.C., worshiping at the traditional Latin Mass he loved. Among his large group of children is an extremely bright and orthodox priest in the Arlington diocese, whom I once witnessed preach a beautiful and theologically penetrating homily on Our Lady… without notes and seemingly off the cuff.

    We can’t it say it often enough to the Left, which will prattle about the dire urgency of having a ninth justice appointed quickly– the role of the Senate is “advice and consent” and that we do not consent to whichever activist lawyer Obama intends to nominate.

  • How appropriate that a just man bear the title “Justice”. May he rest in peace, and may his successor be as faithful.
    Apocalypse 2:17 comes to mind: “To him that overcometh, I will give the hidden manna, and will give him a white counter, and in the counter, a new name written, which no man knoweth, but he that receiveth it.”

  • It was announced that the President will not attend Scalia’s funeral. Asked what he had to do that was so pressing, Wormtongue declined to say.

    Perhaps the Emperor thinks sitting in a Cathedral, under the unblinking eyes of the mural of Christ in Majesty, at the National Shrine, would be an unpleasant experience.

  • Maybe it’s the Holy Water. Asperges Apprehension?

Sorry Mr. Franklin, We Couldn’t

Wednesday, June 26, AD 2013

I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.

Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.

Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.

As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.

Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a  certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.

That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.

The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.

The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.

Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as  Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.

But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?

Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.

Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy.  Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.

No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.

 

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5 Responses to Sorry Mr. Franklin, We Couldn’t

  • I think the style of rhetoric in Kennedy’s DOMA decision makes it pretty clear what his opinion is. Unless he puts states’ rights on the absolute highest pedestal, but it seems very weird to declare the issue illegitimate and prejudiced and limit that view to the federal govt.

  • “[T]he Court has said that citizens have no real redress should state executives defy their expressed wishes.” Except to vote them out of office; they can always do that, if they feel strongly enough.

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Herewith is the First Amendment. DOMA and Proposition 8 are peaceable assembly. Same sex so-called marriage is not equl Justice because the fraud involved in male brides is mob mentality. Proposition 8 judged by Vaughn Walker, a closet practicing homosexual with a vested interest, without the decency to recuse himself is a fraud. Government perpetuated fraud is tyranny.

    God is Justice. Atheism has no standing in a court of law.

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Conrad Black’s Messy Attack on Scalia

Friday, October 14, AD 2011

Conrad Black has written one of the most rambling and fairly incoherent things I’ve ever seen in quite some time.  I’m not quite sure what his overall point is, but he ends up attacking Antonin Scalia  of all people.

But some are, including Justice Antonin Scalia, who, as Maureen Dowd wrote in the New York Times on October 2, has attacked the complainant in a civil suit to stop the banning of co-ed dormitories at the Catholic University of America in Washington, D.C. As Ms. Dowd pointed out, Justice Scalia has not hesitated prior to this to volunteer publicly either his solidarity with his Church militant, or his dissent from it. But in the case of the Roman Catholic Church’s long-held and oft-expressed (by four recent popes) hostility to the death penalty, Justice Scalia recently told Duquesne University in Pittsburgh that if he thought “that Catholic doctrine held the death penalty to be immoral, I would resign.” Since he could not possibly be unaware of the views of the Holy See over the past 50 years (John Paul I was the only pope in that time who did not reign long enough to opine on the subject), nor of the authority of the pope to speak on such matters for the whole Church, it is not clear why he is not delivering his letter of resignation to the president instead of sticking his nose into the dormitory rules in one of the national capital’s universities.

To move the inquiry that Ms. Dowd usefully started to entirely secular matters, there could be searching questions about why the Supreme Court has sat like a great suet pudding for decades while the Bill of Rights has been raped by the prosecution service with the connivance of the legislators, a tri-branch travesty against the civil rights of the whole population, but I will spare readers another dilation on that subject. However, Justice Scalia’s preoccupation with the dormitories of the Catholic University of America (a matter that is now, to the Justice’s chagrin, sub judice), is, in the circumstances and to say the least, bizarre.

Leaving that aside, the report card on the co-equal branches is not uplifting: The legislators and the executive wimped out on abortion and immigration. The beehive of conscientious jurists on the Supreme Court applied a completely amoral test to get to a defensible conclusion on abortion when it was dumped by default on them to determine. And its most vocal current Roman Catholic member, swaddling himself in his faith, upholds the death penalty in contradiction to the popes, holds in pectore his views on abortion (which is not now before the high court, though not for absence of petitions), and thunders fire and brimstone about coeducational university dormitories, which is not, I think, a subject that the See of Peter has addressed.

This is just bizarre.  From relying on Maureen Dowd as a source of criticism of Scalia’s Catholicism, to his complete non sequiter about Scalia’s involvement in the CUA suit, to Black completely misconstruing Church teaching on the death penalty; this turned into an unholy mess of an article that already has no clear thesis.

I was all set to write a response, but Shannen Coffin has already done so masterfully.   I’d be violating fair use to copy and paste the whole thing, but you must read the whole thing.  But here are the key passages:

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4 Responses to Conrad Black’s Messy Attack on Scalia

  • It looks like Coffin’s comment has been deleted.

    I read Black’s article, and there’s no way around it, that’s some bad writing. I even read the Dowd article on the chance that it made sense. It didn’t. I’ve never seen her construct an argument where one point follows another.

    There’s an additional historical inaccuracy in Black’s article that no one’s commented on: the idea that the Supreme Court was forced by the failure of elected officials to step into the abortion debate in 1973. You could make an argument – a valid one, I think – that the elected branches could have been far more aggressive since Roe was decided. But the few efforts they have made have been blocked by a Court that refuses to yield any ground on the issue. Black’s argument simply ignores the facts of then and now.

    They’re right that it’s improper for a Justice to speak out about a court case, though.

  • The post is still there, but I think he deleted one parenthetical aside that he thought was too much of a low blow.

    Some of the commenters on Black’s post (and on his post about the post on the Corner) made the same point you have about legislative attempts to do something about abortion.

    It’s just an all-around sloppy article.

  • The solid gold line has got to be this:
    Since he could not possibly be unaware of the views of the Holy See … nor of the authority of the pope to speak on such matters for the whole Church, it is not clear why he is not delivering his letter of resignation to the president ….

    Accusing someone of ignorance of something that he clearly is ignorant of himself.

    Dude. Meta. (/stoner voice)

  • How on earth Conrad Black could ever be regarded as some kind of expert on Catholicism, I don’t know. I have to admit I’m a bit biased against him because he ran HUNDREDS of newspapers into the ground financially and quality-wise (google “Hollinger International”), looted pension plans for some of the companies he ran, and played a big part in making it difficult if not impossible for people like myself to make a decent living in the profession we trained for (newspaper journalism), in order to finance a lavish lifestyle.

    All that said, a good case can be made that his actions didn’t rise to the level of federal crimes such as wire and mail fraud, and that the feds were overzealous in their prosecution.

    In 2007 Black wrote an 1,100-page exculpatory biography of Richard Nixon. If it’s anywhere near as rambling and incoherent as the column referenced above, I would say that being forced to read it would be my idea of Purgatory 🙂

Elena Kagan Says It Is Fine If The Law Bans Books

Tuesday, June 29, AD 2010

SCOTUS nominee Elena Kagan has argued before the Supreme Court that it’s fine if the Law bans books.

Her rationale?

Because the government won’t really enforce it.

I’m no legal scholar but this sounds like a 3rd grade argument.

Aren’t our nominees suppose to have better reasoning skills and a solid grasp of the U.S. Constitution?  As well as a fundamental understanding  of such concepts like Freedom of Speech?

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14 Responses to Elena Kagan Says It Is Fine If The Law Bans Books

  • Bibles banned in China – is that what is coming here?

  • So is Elena Kagan willing to support banning pornography magazines and books?

  • Like all the other “brilliant” liberals, Kagan the pagan is incapable of right reason.

  • Scratch the thin veneer of liberal bu!!$#it and you slam into totalitarianism.

    Peace, justice and human dignity: the slaves will enjoy free health care, free lunch, and free fornication!!!

  • But don’t you know that if you don’t want free health care, free lunch and free fornication you are part of the “let them eat cake” coalition?

  • And what’s with the new symbol thingies?

  • Phillip and all the non-gravatar readers,

    I got tired of looking at the random abstract icons, so I switched the default to MonsterID’s in the faint hope that some of you guys will sign up for free gravatar accounts/icons.

    😉

  • And what’s with the new symbol thingies?

    Yeah, Tito. How are we supposed to upload a real picture? I tried registering at WordPress, but it won’t accept any reasonable facsimile of my real name as a user name. Can we upload a pic without registering at WordPress?

  • I kinda like my monster thingie. 🙂

  • I also had the same problem as j. Used multiple variations of my name and said they were all used. Must be a govt. program.

  • Phillip et al.,

    Just so everyone knows, MonsterID links that icon permanently to the email address you provide.

    So if you get tired of it, you have motivation to go over to http://en.gravatar.com/ and sign up for a free account!

    🙂

  • To be fair I am rather doubtful that Kagen wantts to ban books. I am trying to recall the exact sequence of events here . I actually think what started this all this were the ealier comments of the Deputy Solicter that gave the SUp COurt Justices the heebee jeevees and thus Kagen here is trying somehow to recover.

    That being said the Supreme Court can make the most seasoned lawyers look like idiots and also (and this is the problem the GOP will have in her hearings) she is basically just working for the boss. So when these hypos come out that go to the most alarming degree well there is not exactly a easy answer.

  • jh

    Nail! Head!

    She’s going to rubber stamp Obama. She’s a nothing and will continue to do nothing except vote for whatever the boss wants.

    Phil, I’m paying for the free health and lunch. They’re on their own when it comes to fornicking. I’m of the “let them have the opportunity to pursue happiness” coalition.

    My grav seems appropriate!

Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

Tuesday, June 29, AD 2010

Back in 1979 I was one of the founding members of the Christian Legal Society at the University of Illinois.  Yesterday, the Supreme Court ruled 5-4 that the Hastings College of Law at the University of California was within its rights to deny recognition to the Christian Legal Society because the group requires that members agree, among other principles, that sexual activity outside of marriage between a man and a woman is sinful, and that members must be Christians.  Hastings contended that these principles violated the open membership policy of the university, in that it would discriminate against prospective members on the grounds of religion and sexual orientation.  Go here to read the decision.

Justice Alito, joined by Chief Justice Roberts, Scalia and Thomas, wrote a thought provoking dissent.

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 654–655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

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23 Responses to Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

  • Kagan once said, it’s okay for the government to ban books because the gestapo would be ineffective at enforcing it.

    You have to scratch a liberal just a wee bit to get to the totalitarian essence under the uber-thin vineer of warm and fuzzy bu!!$hit.

    Isn’t there a right, somewhere in the US Constitution, to free association, in addition to the rights to abortion; gay privileges; being fed, clothed and housed by the taxpayer.

    The king denied the Colonists the right to meet. They met anyway – Committees of Correspondence. The king isn’t king of this country. We shall overcome.

  • The pairing of decisions yesterday reminds us that our constitutional rights are basically at the mercy of the whims of Justice Kennedy. It’s truly frightening. Though he seems to have re-discovered some measure of a backbone, on social issues he remains completely inept.

  • Has there ever been a less consequential decision? Gays aren’t going to get elected to leadership positions in CLS.

  • Question: If Hastings is a state institution, thus receiving government funds (from the tax payer), does that not mean it is essentially a politically-funded entity?

    And if so, should we not be surprised that what is politically correct weighs heavey on their policy choices?

  • Has there ever been a less consequential decision? Gays aren’t going to get elected to leadership positions in CLS.

    I think the issue is more that it makes it very difficult for CLS to assemble, hold activities, etc. on campus if theyr’e not recognized as a campus organization.

  • Darwin, CLS can, and probably will, amend its pledge banning gays and the club will continue with business as usual, i.e., without gays.

  • One of the things I find interesting is that the argument that a group should be allowed to keep out people they do not like is being argued by two different groups.

    First, CLS. They say they should be free to have a group which follows the principles they hold dear. Of course, if they were not on a campus, looking for funding and approval to use facilities on campus, I think no one would question such a right.

    However, the second group is the university itself. If CLS has a right to discriminate, why does a university not have that right? To argue in favor of CLS is to argue in favor of the university, as far as I see it. That, I think, is the paradox with this case.

    Can someone show me why CLS can discriminate and not the university? I am in favor of free associations, and I do think a university should encourage such free associations (the university’s policy is wrong), but I also do wonder how a university is not accorded such a right?

  • BTW, I would even agree the university is going against its claims of tolerance to discriminate in this way, however, the question is not whether or not the university is acting bad, but whether or not it is within their legal rights.

  • Eh, you might be right, RR. I guess as an old Boy Scout I figured the organization would stick to its guns and suffer the consequences. 🙂

  • I am not a huge Kennedy Basher but bioth the right and left are right at times he gets carried away with his verbiage. I am amazed that a Catholic Justice basically said that Creed like matters are like Loyalty Oaths

  • Has there ever been a less consequential decision?

    I disagree. Traditional morality is only tenuously tolerated. This further institutionalizes its banishment from the public sphere. It has very little to do with whether CLS admits gays or not; look beyond the legal ramifications to see the cultural narrative. A Christian group, along among others, is singled out for chastisement. This has everything to do with what metaphysical premises are acceptable in polite company.

    “Untenured” at WWWtW said it best (with respect to another story):

    Increasingly, we are seeing secularists posture as though their pet metaphysical and moral committments are some kind of reasonable “default” that everybody would naturally gravitate towards if only it weren’t for the malign influence of religious “indoctrination.” There is a very real movement to portray traditional morality as some kind of “pathology” that is okay to exercise coercion against. Witness, for example, the attempt to make moral objections against homosexuality appear as if they are *no different* from objections to interracial marriage. Even people with philosophical training who ought to know better, like to pretend that this line of reasoning is cogent out of some kind of weird “political solidarity” with “sexual minorities.” They don’t give a darn about intellectual honesty- they want to deny traditional moral beliefs a toehold in the space of reasons, and they will do so by any means necessary. I’ll bet dollars to donuts that we are soon going to see people arguing that there is *no difference* between a homeschooler being taught traditional morality and an underage bride at a Mormon polygamy compounds. Then some arguments, with the pretense of hand-wringing, about how reasonable people have no choice but to coerce these backwards homeschoolers out of existence. For the sake of the children, of course.

  • ” I would even agree the university is going against its claims of tolerance to discriminate in this way, however, the question is not whether or not the university is acting bad, but whether or not it is within their legal rights”

    Henry I think it is clear that the University cannot , as a general matter with exceptions of course) discriminate against viewpoint discrimination.

    Now I realize this is a complicated case and in hindsight I am willing to bet the Justices wised they never took up the case because they discovered it was such a procedural mess and the factual record was clouded.

    That being said while many are saying the Opinion is narrow ( focusing just on this odd unique all comers policy) I am not so sure if it that narrow at all. The comments by some of the Justices on how they got there are perhaps the most disturbing and I am hoping like Justice ALito this si an aberation

  • “Eh, you might be right, RR. I guess as an old Boy Scout I figured the organization would stick to its guns and suffer the consequences.”

    Well the case is not over. They still have a chance to prove that this “all comers” policy was a pretext for unlawful discrimination

  • “However, the second group is the university itself. If CLS has a right to discriminate, why does a university not have that right?”

    I would say that a private university should have that right, but a public university does not. Here we have a governmental institution, Hastings Law School, imposing membership criteria on a private entity, the Christian Legal Society. All Catholics, members of an organization that is looked upon with hatred by many of the elites in our society, should look with alarm at this decision. “The Catholics want to prevent women from being priests? Fine, we will pass a law dictating that no non-profit may have tax exemption unless they sign on to this non-discrimination policy.”

  • I would say that a private university should have that right, but a public university does not. Here we have a governmental institution, Hastings Law School, imposing membership criteria on a private entity, the Christian Legal Society.

    Actually, the problem is the university is saying that, as a public institution, it cannot accept a private society as a student body if it is going with such discrimination. In other words, their argument is if they support the society, they are supporting such discrimination as a public institution. They are not saying what CSL can or cannot do, just what they can or cannot do if they want to be a student group at Hastings. The court, of course, said something unusual, in that it said a university can engage in such rules, but does not have to. It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.

  • “Actually, the problem is the university is saying that, as a public institution, it cannot accept a private society as a student body if it is going with such discrimination.”

    That is a way of saying that the public entity will discriminate against a group based upon its membership policies, unless the private group has membership policies acceptable to the public entity. The implications for Newman Centers on public campuses are clear, along with any groups that are in official disfavor. The true absurdity of this policy of course is that almost all private groups, by definition, discriminate. A staunch Republican like me would not be wanted among College Democrats. If I join a Chess group on campus, I will be expected not to insist upon the group playing checkers. Why this absurd policy of no discrimination in admissions by private groups of course is being implemented on campuses is as a hammer to beat groups that do not sign on to the gay rights agenda. This is governmental action engaging in viewpoint discrimination in order to banish from campuses those groups engaging in heretical thoughts.

  • It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.

    I don’t think I agree or understand what you said before, but I agree with this sentence. Whenever one tries to enforce what SCOTUS said in this opinion is a “viewpoint-neutral” outlook, you run into problems once you have conflicting viewpoints. Instead of ditching the whole flawed approach, the majority here tried to argue “this form of discrimination isn’t really discrimination” by pointing out that CLS can exist off campus (which as a college student I can tell you is a waste of time; w/o events on campus and the funding to throw even small lunches, recruitment is difficult to impossible).

  • Says Kennedy, via the Washington Post: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

    Memo to Kennedy – as an American citizen, I have a right not to engage in dialogue. As an American citizen, I have the right to freely associate with whomever I choose. And the students on that campus, a public campus, have those rights as well.

    The right to associate and exclude on the basis of values may be the only thing that prevents radically different groups from going to war with each other. American governments and courts that think they can force everyone to “dialogue” are going to be in for a rude awakening. This isn’t Europe.

  • “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

    Kennedy is always good for a bone-headed quote. This one is hilarious for two reasons.

    First, the clear intent of the Hastings Policy is to quash a point of view that the administration of the law school finds distateful by denying the Christian Legal Society recognition.

    Second, if there is any group more cloistered from opposing views than the federal judiciary, with lifetime appointments, I am unaware of it.

  • Henry Karlson wrote: “If CLS has a right to discriminate, why does a university not have that right? To argue in favor of CLS is to argue in favor of the university, as far as I see it. That, I think, is the paradox with this case.”

    This is exactly what my husband said when we discussed it. He’s pretty libertarian in outlook. His argument is that the university can make whatever rules it wants to for official clubs, that the students are still free to do what they want, but if they take the university’s money and free space, then they have to abide by the rules. He says it’s better for them to do so and believe what they want to.

    Things are coming to a head, and I’m afraid that anyone looking for tolerance anywhere is likely to be disappointed.

  • “His argument is that the university can make whatever rules it wants to for official clubs, that the students are still free to do what they want, but if they take the university’s money and free space, then they have to abide by the rules.”

    It should not be the role of any government entity to set the membership policies for private groups. It is of course especially ironic that this attempt to stifle a viewpoint is taking place at a university, a supposed citadel of intellectual liberty. Of course most universities in this country, as demonstrated by repeated attempts to impose speech codes on students, are as enamored of freedom of speech as they are of cutting their budgets to reduce the exorbitant tuition that they charge.

  • The libertarian outlook sees this case as yet another illustration of the need for separation of Schooling and State.

  • It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.-Henry Karlson

    Seems? (Hint: category error.)

Supreme Court Holds That the Second Amendment Applies to the States

Monday, June 28, AD 2010

In the case of McDonald v. the City of Chicago, the Supreme Court of the United States ruled that the Second Amendment applies to the states.  Read the decision here.  The decision was 5-4 which is absolutely stunning since I think that there was no intellectually respectable argument to be made that the Second Amendment does not apply to the states.

The bill of rights applies to the States due to the Fourteenth Amendment.   In the opinions written by the majority justices, emphasis is given to the importance that the drafters of the Amendment placed upon the rights of freed slaves after the Civil War to keep and bear arms for their defense.  A good day for the Constitution at the Supreme Court.

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16 Responses to Supreme Court Holds That the Second Amendment Applies to the States

  • Apropos of our discussion a few weeks ago regarding Justice Scalia’s view that “tradition” should inform the Court’s “substantive due process” jurisprudence, note that this was key to the Court’s decision. (See also Justice Scalia’s concurrence, in which he masterfully dissects Justice Stevens’ dissent.)

    I think Justice Thomas’ privileges or immunities clause analyisis is the better argument from both an originalist and textualist standpoint. But, given that that ship has already sailed, and given the need to limit the Court’s “substantive due process” jurisprudence to those rights that actually have some grounding in the text of the Constitution and the history and tradition of our nation, I can’t say that I blame the majority for relying on the due process clause rather than privileges or immunities, and using this case as a vehicle for defining the limits of “substantive due process”.

  • One gets the feeling that, should a case that hinges upon the question “Does the Constitution require that there be a House and Senate?” make its way to the SCOTUS, the vote would come down five votes to four. Sadly, no one seems able to predict whether the five would be for or against.

    Those of you who think “we are a nation of laws” will find yourselves confounded by the caprice of five untouchables in black robes.

  • I agree. The vote should have been 9 – 0.

    One, “the right of the people to bear arms shall not be infringed.” Can the four dissenting read?

    Two, I bet “dollars to donuts” that the four dissenting (plus Kagan) will affirmatively vote (hallucinating) that the constitution gives a woman the RIGHT to have taxpayers pay a medico to exterminate her unborn babies.

  • Incorporation through the 14th has been piecemeal. The court had never adopted a blanket doctrine of incorporation. But I agree that if we’re going to incorporate at all, the 2nd amendment has to be included.

  • I’m with restrainedradical. The incorporation doctrine is hardly an obvious feature of our constitution, but there is no coherent basis for excluding the 2d amendment from its ambit once it has been applied to the other enumerated rights.

  • T. Shaw, I think the four dissenters are right in insisting that the clause you quote–“the right of the people to bear…”–is qualified, and rendered more precise in its intent, by the prior clause, establishing the need for militias. On an originalist reading of this text, the right to bear arms for, eg. the purposes of hunting or personal protection, simply does not exist.

  • WJ,

    That issue was decided and rejected in the Heller case. They had already lost on that. And don’t pretend that your argument is originalist. Calling it such doesn’t make it so.

  • wj:

    I think the four dissenters do not believe we the people should be free people. I doubt they believe in individual liberty.

    You may read the commentaries, minutes, and statements of the “state” conventions, and all the drafters/founders. At no time was the right of US citizens to individually keep and bear arms questioned until around the time the federal government instituted the income tax (they needed to amend the Constitution) and Federal Reserve System.

    But, you’re right. Once the Obama regime packs the court. [I’m ‘chanelling’ Thomas Jefferson here] We’re likely to devolve into slaves to the state.

  • wj:
    Your is a common argument. The problem is that it does not withstand the scrutiny:

    http://www.guncite.com/journals/vanalful.html

    Van Alstyne is one of the leading con law scholars of our time. Although a liberal to the core, he is ruthlessly principled in his constitutional reasoning. for instance he is pro choice as a policy matter, but believes Roe was a terrible decision.

  • I’m aware of van alstyne and heller etc and disagree with the findings of both. You can disagree with heller precisely on originalist grounds; which is not to say you must–just that you can as a matter of interpretation. Both heller and van alstyne perform any number of impressive exegetical contortions to escape what to my mind is the clear intent of the sentence in question. But maybe you’re right that the four dissenters are motivated less by interpretive scruple and more by policy preference.

  • Fair enough, Wj. For what it is worth I have no great interest in gun regulation as a policy matter, and really don’t care if guns are outlawed. But I find Van Alstyne’s exegesis if the 2d Amendment air tight. Moreover, I have known Bill for almost 30 years; he is immune to exegetical contortion. I have no opinion on the motivations of the four dissenters. I just don’t think there exists a reasonable argument for sparing the 2d Amendment from the incorporation doctrine.

  • Way too much education wasted here on a rather simple issue. Where in the Constitution is any branch of the federal government given authority to disarm either the states or the people? The ninth amendment applies. The critical issue here, and the reason many oppposed incorporation of “the Bill”, is that the amendment did not create the right, though it is now treated as if it had; it only acknowledges the right. No one ever would have written the second amendment as it was written to make sure that states allowed their militia to keep arms at their homes (the point of mobilization). To say they would have is simply dishonest. So it comes down to this; you are either for, or against the Constitution. There are no nuances here that merit consideration.

  • I’ve heard estimates that 90,000,000 Americans own firearms.

    “The beauty of the Second Amendment is that it will not be needed until they try to take it.” Thomas Jefferson

    “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…such laws make things worse for the assaulted; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” Thomas Jefferson 1764

    “No free man shall ever be debarred the use of arms.” Thomas Jefferson proposed Virginia constitution 1776

    “The Constitution preserves ‘the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.'” The Federalist #46

    “…arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…Horrid mischief would ensue were the law-abiding deprived the use of them.” Thomas Paine Thoughts on Defensive War 1775 – proof positive in all the states that infringe the Second Amendment.

    “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams 1788: During Massachusetts’ Constitution ratification convention.

    “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.” Patrick Henry: during Virginia’s ratification convention (1788)

    “Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.” John Adams 1788

    “A militia when properly formed are in fact the people themselves…and include all men capable of bearing arms…To preserve liberty it is essential that the whole body of the people possess arms.” Richard Henry Lee Additional Letters From The Federal Farmer 53 (1788)

    “I ask sir, what is the militia? It is the whole people…To disarm the people is the best and most effectual way to enslave them.” George Mason: Virginia’s US Constitution ratification convention (1788)

    “To secure the blessings of liberty to ourselves and our posterity.” US Constitution

    “Government is not reason; it is not eloquence; it is force; like fire, it is a dangerous servant and a fearful master.” George Washington, Farewell Address

  • That Washington quote has to be the best. Seems our Presidents went downhill from there.

  • Kevin, nobody reads the 9th Amendment as you do because it would be ridiculous to do so. The 9th was intended merely to clarify that the Bill of Rights shouldn’t be interpreted to prohibit all other rights. It doesn’t ensure any rights. It only ensures that absent a law prohibiting it, you have the right to do it.

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The Red Mass and Cardinal DiNardos Pro-Life Homily

Monday, October 5, AD 2009

Daniel Cardinal DiNardo, the Archbishop of Galveston-Houston, was the chief celebrant at the annual Red Mass Cardinal DiNardo Sotomayoryesterday at the Cathedral of Saint Matthew the Apostle.

The Red Mass is celebrated annually at the Washington, D.C. Cathedral and hosted by the John Carroll Society, a group of Washington area legal professionals.  The Mass is normally for for judges, attorneys, law school professors, students, and government officials.  The Mass requests guidance from the Holy Ghost for all who seek justice, and offers the opportunity to reflect on what Catholics believe is the God-given power and responsibility of all in the legal profession.

The Red Mass is so-called from the red vestments traditionally worn in symbolism of the tongues of fire that descended on the Apostles.  The most significant difference between the Red Mass and a traditional Mass is that the focuses of prayer and blessings concentrate on the leadership roles of those present.  Guidance from the Holy Ghost is asked to be bestowed on the congregants. Other blessings that are commonly requested to prevail in the minds, offices, and court rooms are Divine strength, wisdom, truth, and justice.

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25 Responses to Obama and Notre Dame – a Belated Follow-Up

  • Agreed 150% on the PWSA as a good common-ground measure. Heck, it’s good legislation regardless of whether it brings folks together or not.

    But, if you google around a bit, you’ll find that there is a lot of resistance in left-wing circles to the Act, coming from the mindset of the “reducing pregnancies, not number of abortions” crowd. The PWSA forthrightly (and rightly) presumes that abortions are bad and discourages them, which is a no-no in those circles.

    Given that the President appears to share that mindset, I think the odds of him putting his clout behind the PWSA are vanishingly small at this point in time. If/when he needs pro-life Democrats to get something he truly cares about passed, then you might see the horse trading.

    Sadly enough, I think we’re much more likely to see Rep. Slaughter’s “Prevention First Act” than the PWSA. And, make no mistake, Slaughter is in the hard-core choicer camp.

  • Father Jenkins- surprise still in his job- received his 15 minutes of fame. Dear Leader received another day of adulation. Both care about the unborn about as much as the crumb sitting on my desk. By me. Lovely rhetoric about Dialogue and such. But no other significant issue- and this is as significant as it gets- is more polarizing. Designed to be no other way. Tim notes those rare creatures known as pro-life Democrats- endangered species who should receive legal protection. Perhaps Dear Leader will open up TARP money for Planned Parenthood and non-franchise clinics. Might have the same beneficial effect as to Ford and Chrysler. Oh, just to note before posting- Tiller The Killer’s big time abort business is shutting its doors. What a shame. Maybe it could have qualified for TARP funding.

  • (1) Scalia does not really believ ein Original Intent

    (2) I don’t know what you mean by the “American Right” wanting to wash it hands of abortion by sending it to the States. First many on the right are for the Human Rights Amendment. ALso the “AMerican Right” would be working in their respective State legislatures to prohbit abortion. Activity does not stop just because it does not happen in the District of Columbia

    (3) Archbishop Chaput said recently there was no “Catholic way” to the interpret the Const. I think he is right.

    (4) what you refer to as States Rights is more commonly know as Federalism that has not been abolished. I think if you are proposing that getting this issue back to the States is against Catholic SOcial Doctrine you need to flesh that out some.

    (5)THere are Natural Law folks on the right such as Arkes and Robert George etc etc that are trying to influence the Court and polticy

    (6) There is nothing to probhibit Legislators from legilsating based on the Natural law

  • Let me add the whole Subsidarity , Federalism, abortion issue was fleshed out in some detail in response to Kmiec.

    See this entry at America magazine

    http://americaelection2008.blogspot.com/2008/10/different-take-on-kmiecs-book.html

  • Yeah, I would say that States Rights is quite consistent with Catholic Social Teaching. Subsidiarity and all. That is a principle you know.

  • I will grant that labels like American Political Left and Right are very general- but I think that those who feel comfortable self-labeling themselves liberal or conservative, will fit those larger categories. I reject these labels for myself because I believe like Archbishop Chaput- I use his great book “Render..” in my classes- that there isn’t going to be a Catholic political party- as the Compendium states we are always to be critical members of any political party- that implies that there is always going to be an incompleteness in any purely political party.

    I don’t mean to take a cheap shot on those who take the Federalist position, that abortion can only be resolved at the state level because that’s how our Constitution was written- but I advise all Catholics to read Notre Dame prof. Rice’s book on Natural Law. He describes Justice Thomas as pretty much putting the idea of natural law reasoning to death, when he backtracked during his confirmation hearings on previous positive assertions on the role of such reasoning in juridical decision making. I do view Scalia and Thomas quite negatively for the way they come across in interviews when they seem proud to assert that their Catholicism has absolutely nothing to do with their work as Justices- I don’t think anyone in any position should say that- the natural law is everyone’s responsibility- especially those with juridical and political power- this is an intellectual dodge- even if it is an honest one- to come across as some kind of progressive, non-partisan in contrast with those who do use reasoning beyond the deciphering of the original intent of the Constitutional framers.

    Professor Rice says that on abortion we don’t even have to pull out the natural law trump card- it would be rare to have to do that given that much of positive law in the Constitution is already rooted in natural law reasoning- if we apply the 5th and 14th Amendments to the unborn, we would be good to go- but this is not on the radar in the Scalia/Thomas circles as far as I know- and I would say that these Justices are very well regarded in general by conservatives/ American Political Right.

    I am offering a critique that isn’t designed to play well to liberals or conservatives, I don’t think Jesus played to such narrow audiences, and I don’t find the complete social doctrine of the Church to be in conformity with any ideology that I’ve encountered thus far- so I work in both liberal and conservative circles depending on the issue- but sometimes neither camp seems to get it right- like on abortion- the liberal juridical approach is ice cold, while I grant the Scalia et al approach is luke warm- not sure I can get on board with lukewarm even if it offers a legislative endgame in every state. I want the unborn to be safe in every state, all over the world- the Law should reflect this- the Law must reflect this, and then all other aspects of society will need to reform to adjust to this reality- economically, culturally- all of it needs to upgrade to deal with the children we will be welcoming into the world instead of terminating.

  • Subsidiarity is not to be viewed apart from the universal common good and solidarity- it also isn’t a replacement for the natural law requirements for all people- Catholic or not. This emphasis on natural law is found throughout the social doctrine and papal encyclicals

  • Thank you for a thoughtful diary. Another bill that I hope starts gathering support is the “Newborn Child and Mother Act”. Approximately 1500 mothers die in childbirth across Africa EVERY DAY. I gather most of their babies die, too.

  • TIm

    Let me say I am not saying that Natural Law Jurisprudence is forbidden. As Arkes says where in the Const does it forbit it? I am just saying that if lets say a Catholic Judge does that think that was part of the Document then I think he can in a valid way interpret it otherwise. I mean in the end his Power and authority come from the Document or the “Pact” as it were. So when Scalia looks at the text he does not that think he has the power to change it

    It is in a sense similar to the situation of the Federal Judges that lets say were anti Slavery. They might have been anti Slavery but because their power and authrotiy came from an agreement that made an compromise with this evil they very well could not just ban it nationwide.

    Again as to Natural Law and the Social Compendium what should Catholic Judges do. I can’t imagine that they would start citing the Comepndium of SOcial Justice. In fact what authority would they have to base Opinion on that at all.

    I am not sure Scalia or THomas for that matter have an agenda to end abortion nationwide. I think they probally think that is not their job but the job of the legislator. I strongly suspect that Scalia thinks Gay marriage is wrong. However I doubt he would think he ahd any authority to “ban” it in lets say Iowa.

    TO quote Chaput in Full
    “CHAPUT: The Supreme Court doesn’t make law, as we know. It interprets the law. I think it’s much easier from a moral perspective to be a justice – a judge – than it is to be a legislator. Legislators are the ones who make laws and change laws. But to interpret the law in its fidelity to the Constitution is a much less morally compromising kind of position to have, I think.

    I’d rather be a justice than a politician, in terms of dealing with my conscience, because if we write bad laws in this country that are constitutional, then the judges – the justices – have to interpret the laws as allowed by the Constitution, even if they don’t like them, even if they would think they’re not good for the country, it seems to me, even if they think they’re not moral. That’s what justices do. So I had the impression that Wendy thinks that the Supreme Court writes the law. Certainly that’s not my impression. I know it can’t write the law. In terms of not wanting all the justices to be Catholics, I agree with you, Michael. That would not be a good idea in the United States”.

    http://pewforum.org/events/?EventID=213

    Now I think Judical attitudes matter that is for sure. The attitude of the Iowa Supreme Courts Justices was frightening as they basically shot down arguments because they thought they could smell religous intent.

    I just think from a Natural Law standpoint that the key is if one wishes to adovcate that is to start in the legilatures. That is where the action is.

    As Chaput stated

  • “Subsidiarity is not to be viewed apart from the universal common good and solidarity- it also isn’t a replacement for the natural law requirements for all people- Catholic or not. This emphasis on natural law is found throughout the social doctrine and papal encyclicals”

    Well Tim I don’t think Federalsim gets rid of that. I mean what is changed or what is at issue is what branches of the Governements have the responsibility, power , and authority to act as to the common good or solidarity.. As to the abortion question is it the States or the Federal Govt or a combination of the two.

  • What other aspects of the natural law should the Justices be concerned with? Should a Catholic-based interpretation mandate that all homosexual acts be outlawed? Should a natural law view of the Constitution mean a ban of contraceptives? How far do we take this? And what do we do when we have a majority of Justices whose interpretation of the natural law leads to conclusions quite the opposite of our own?

  • Tim

    I think my other post did not go through for some reason

    Let me clear I am not saying that Natural law Juridprudence cannot be had. As Arkes says where in the COnst is it forbidden.

    I just think that if you really want Natural Law and to have it part of our system one needs to start with the legislature where the real action is at. THat is not to ignore the Judiciary. We should recall that Iowa Supreme Court mandated Gay marraige and in that argument they shot down opponets of it because they say said they could smell religious reasoning. That is a problem

    I am not sure at all that THomas and Scalia have a “plan” to end abortion. I suspect they don’t think that is their job but that of the legislature. Just Like how I think that Scalia is against gay marraige but I could never seem him overturning a state law allowing it because it goes against the natural law or because he does not like it.

    I suppose if we are going to get natural law more in the discussion first the Catholic schools nned to be teaching it more.Then we are going to have to have an discussion with our neighbors about it.

    Political parties are not going to be able to do that. In fact in GOP circles where such an approach has fans in some segments there would have to be some on the evangelical side that would have to embrace it. SOme are open others are wary.

    So as to Natural law principles I think there is a lot of work to be done before we can expect polticos to start using it. In fact we might need to breed a whole new generation of polticos that understand it.

    When I talk to Catholic about the natural law it sometimes seems like they look at me like I am from Mars. That has nothing to do with left, right, or center but just horrid Catholic education in the Puplit, in CCD , and in the schools.

    As to Catholic social justice concerns and principles I think there will be porgress till each “side” that is engaging this start talking to each other instead of yelling at each other.

  • Tim,

    Of course subsidiarity is to be seen in the context of the common good and solidarity. Just as solidarity is to be seen in the context of the common good and subsidiarity. The claim of solidarity does not rule out allowing more basic units of society tend to the common good. Catholic Social teaching never says this. In fact higher units of society are to take over only when lower units cannot meet a common need. States rights fits perfectly in this framework.
    When to allow higher units to take over from lower is a prudential judgement in many cases and you will not find such a criteria in the Compendium.

  • My impression from reading the social doctrine is that the common good is the only real reason for having governing authority in the first place- when this focus is lost then that authority can soon run amuck- I do not dispute or ignore the principle of subsidiarity but we are talking about abortion here, and that is something that cannot be left to even a popular vote- it smacks of the whole scene with Jesus being condemned by popular vote, and Pilate standing by, washing his hands of the affair, even as he seemed to side with Jesus on the level of basic justice- Pope John Paul II even used this comparison with abortion and Christ with over-reliance on democratic outcomes in determining all important matters- now Pilate has not gone down in history as a heroic figure- and I don’t think that a State’s Rights approach to abortion is going to be seen as the best we could do at the level of civil authority.

    We have a problem with subsidiarity as a primary principle to view abortion or the global economy through right now- with the power of multinational corporations usurping even the power of national governments- read Bailouts- it would seem that the local government powers have not kept up with the times- and Free Trade Pacts have taken economic decisions far afield from local control. With abortion, we simply have to have everyone doing what they can with whatever power they have to establish the legal and moral sense that an unborn child is worthy of our human rights. Natural Law reasoning does not have to be overused to the point where we have an effective theocracy- but we ignore the Natural Law to our own peril as a nation, as a people.

    Again- I cannot go into the detail here on this as Professor Rice did in his book- 50 Questions on the Natural Law- if anyone has read that book and has any comments I would love to hear of your thoughts. I think he represents the most orthodox Catholic position on the importance of Natural Law, and how we can promote it without having to force the nation to convert to Catholicism wholesale. There is something religious behind the Natural Law, and the Catholic social doctrine is a necessary guide- but the Natural Law is something reasonable and can be argued with non-believers and believers alike. We cannot continue to cede everything to the secularists- at some point we have to fight for more than merely symbolic gestures like Nativity Scenes on government property- we need Catholics willing to stand behind Natural Law reasoning and Catholic social doctrine- the Natural Law reasoning is all we need to use in public debates, and all the Justices need to make certain that Justice prevails when opportunity comes for them to render decisions that obviously offer life and death for many. Imagine if genocide came up for a vote? Abortion is a genocide of unborn, unwanted children- millions of them- if this doesn’t call forth a universal decision on the part of our Supreme Court- then they may as well pack it in, and leave our Capital empty of Justices and Justice.

  • Tim

    So a vote on the Supreme Court is legitimate but a vote in the Staer Houses is not. Also one can amend State Const a heck of a lot more easier than you can the U.S. COnst to show these natural law principles

    Again it is not a principle of “State Rights” but Federalism. I am not saying fight for a Human Rights AMendment. In fact I suspect that a HUman Ruights amendments would gain steam when it returned to the States.

    You know we can’t just blame nameless polticos in D.C. for not getting the pro-life cause done. It is suddennly much more in our faces where we must convince our neighbors

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  • Tim,

    Its not a problem of seeing subsidiarity as a primary priciple for in fact it is. As are the principles of the common good and solidarity. They are an organic unity. The problem becomes how do we apply these primary priciples to concrete situations. You have your problems with multi-nationals. I have a problem with strong (an ever increasingly stronger) national and international governments. The Compendium does not have a policy to address these. Catholics in good conscience apply the primary principles. At times Catholics in good conscience disagree, sometimes strongly. That’s life in the secualar for the Christian.

  • Honestly, Tim, I think your argument sets up a couple of straw men that you then proceed to effectively slaughter; I disagree with a couple of your premises, and must, therefore, disagree with your conclusions.

    First, I believe you fall victim to the same illogic that drives most who claim to not be “right-wing” Catholics: namely, you choose to lump all Catholic Social Teachings, and abortion, into the same mass and call it legitimately Catholic. I disagree for a couple of reasons:

    1. You mentioned that you would have invited neither PResident Obama nor President Bush to speak at Notre Dame, given the authority to make such a decision. You cite both men’s lack of conformity to basic principles of Catholic Social Doctrine as your reason.

    This comparison sufers for at least two reasons. first, abortion, and , say, the death penalty are not equivalent issues. The authority to make the decision to mete out a penalty of death rests with duly elected civil authorities. SOLELY with them. And while the Compendium of Catholic Social Teaching may decry the occasional necessity to mete out such a sentnece, and while it may state that the circumstances which should require such a penalty are so rarae as to be almost nonexistent, in the end, the judgment of the circumstances lies SOLEY with those duly elected to exercise such authority.

    Similarly with the exercise of war powers. The Church rightly decries the use of military force in *any* circumstance; however, it recognizes the right of governments to enter into armed conflict against those nations or entities which pose a credible threat, and which cannot be subdued by other means. That right flows from the national leader’s responsibility to provide for legitimate defense of its territory and citizens. And the authority to make such a decision rest, again, SOLELY with the likes of President Bush and President Obama.

    Man, this is brain-wracking. I will amend my opening statement to include the thought that I can only respond to one at a time.

    But i fwe are goin gto use Catholic Teaching to justify our positions, it wold seem prudent…to use ALL of it, not jsut the parts that nicely fit our preconceived schema.

    God bless.

  • Totally apart from the extremely interesting issues and discussions in this thread, it occurred to me [somewhat belatedly] that Father Jenkins was greatly disingenuous in the reasons he gave for inviting Mr. Obama to speak at the Commencement exercises.

    Commencements they are meant to be – but commencements to the world wider than the campus in South Bend.

    Now if the graduating students had not pretty well covered the subject – personally and intellectually – in four years’ attendance at the school, what is the purpose of a dialogue about it just as they are about to leave? Surely their teachers must have discussed [dialogued?] the issues during the campaign a year previously.

    I said disingenuous; I repeat disingenuous.

  • And the authority to make such a decision rest, again, SOLELY with the likes of President Bush and President Obama.

    But it does not end there. The authority to pass judgment on the decision made by presidents lies with the Church and SOLELY with the Church.

  • Tim,
    I would go further in this line of consistent criticism of the American political Left and Right. I don’t believe that the state’s rights approach to abortion rights is truly consistent with Catholic social doctrine. The juridical philosophy called “Originalism”, which is championed by many Catholics supportive of the American political Right, is not one that is rooted in Natural Law.

    Conservative Catholics hold to the belief that the laws of the land should be rooted in Natural Law. They belief that the way to change those laws is through democratic processes which are established in the United States constitution and the constitutions of the several states which it comprises. There is nothing in Natural Law which states that a judiciary should act in contravention of the laws which are established.

    Professor Rice says that on abortion we don’t even have to pull out the natural law trump card- it would be rare to have to do that given that much of positive law in the Constitution is already rooted in natural law reasoning- if we apply the 5th and 14th Amendments to the unborn, we would be good to go

    I agree completely.

    but this is not on the radar in the Scalia/Thomas circles as far as I know- and I would say that these Justices are very well regarded in general by conservatives/ American Political Right.

    I’m not so sure, have they ruled that way? If a case came before them which way would they rule? I think you’re mistaken. Those justices have consistently ruled in a way that would allow us to infer they do in fact believe that the unborn are human persons and are protected. Their Catholic faith (and basic empbryology) teaches them that, and there is no contradiction with the Constitution which would preclude them as “originists” in ruling that way.

    we simply have to have everyone doing what they can with whatever power they have to establish the legal and moral sense that an unborn child is worthy of our human rights. Natural Law reasoning does not have to be overused to the point where we have an effective theocracy- but we ignore the Natural Law to our own peril as a nation, as a people.

    Absolutely, but I think there is limits to what a Catholic is compelled to do given the restrictions of his office, especially if he has taken an oath to be bound by those restrictions. Now, no Catholic is permitted to commit an immoral act regardless of his office, but that doesn’t mean he is obliged to use their office illegally in their actions.

    Michael J. Iafrate,

    But it does not end there. The authority to pass judgment on the decision made by presidents lies with the Church and SOLELY with the Church.

    No. Wrong. While the Church has the authority to pass judgments when a public act is in objective violation of Church teaching, she does not make such judgements on purely subjective reasoning (sound thought it might be), nor does the Church pass judgement where she does not possess all of the relevent facts that the civic authority does. She may and often does issue opinions based on what is known and the preponderance of evidence, but that is not the same thing. Ultimately the judgement falls to the Lord God Almighty.

    Jh,

    I just think that if you really want Natural Law and to have it part of our system one needs to start with the legislature where the real action is at.

    exactly!

    Deacon,

    awesome! You nailed it.

  • No. Wrong. While the Church has the authority to pass judgments when a public act is in objective violation of Church teaching, she does not make such judgements on purely subjective reasoning (sound thought it might be), nor does the Church pass judgement where she does not possess all of the relevent facts that the civic authority does. She may and often does issue opinions based on what is known and the preponderance of evidence, but that is not the same thing.

    No, YOU are wrong. The Church has the right to make judgments on wars. Period. That it does not do so regularly with unambiguous force does not mean it does not possess this authority.

    Your mistaken view is precisely one of the results of buying into the americanist separation of secular and sacred authority. Too many Catholics (usually so-called “patriotic” ones) fall for it. What you do not realize is that you are contributing to the marginalization of the Church by promoting such nonsense.

  • “There is nothing in Natural Law which states that a judiciary should act in contravention of the laws which are established.”

    Because the Natural Law, i.e. the Law of Human Nature has no conception of “judiciaries.” However, the moral principles to which we’re oriented would suggest that laws that are not in accord with true justice–thus, not actually being laws should be contravened. Simple establishment makes no case in itself for not contravening it. Now you’ll argue that’s the role of the legislatior; I’m establishing that the Natural Law is not silent about the matter.

    “I think there is limits to what a Catholic is compelled to do given the restrictions of his office, especially if he has taken an oath to be bound by those restrictions. Now, no Catholic is permitted to commit an immoral act regardless of his office, but that doesn’t mean he is obliged to use their office illegally in their actions.”

    Well, I see your point. But this is again my problem with Scalia’s philosophy. I talked about it in a different thread. Effectively, I think the American conception of “justice” and “law,” at least in terms of judicial philosophy is based largely on positive law philosophy and Western Enlightenment philosophy rather than natural law thinking, and therefore, a proper notion of justice and law. Therefore, I think the “originalism and textualist” position might do-the-least-harm, it remains fatally flawed.

  • Eric,

    so how do you propose a “natural law” based judiciary should act? Do we need a legislature at all, just for administrative types of laws? Why not just a system of judges who base their rulings on their understanding of natural law? What reference documents for natural law would be used as a basis?

    I reject this idea because it is akin to anarchy. Each judge applying his own understanding of a very broadly contentious set of rather non-specific rules.

    I believe self-governance is in accord with natural law, and so the people guided by conscience establish the system of laws, the judges do not overturn them they simply apply them.

    There may be certain cases where heroic violation of laws will not cause more harm than good, that any moral person should stand up against them, this can not be the general case.

  • Matt,

    Well, I am no constitutional law scholar. However, I do think that the “originalist” and “textualist” position contradict, to some degree, my understanding of both law and justice because of the inherent lack of consideration of natural law principles. This, I think, is a built-in recipe for disaster. Granted, while the philosophy itself might be, relative to other theories, the “lesser of evils” because of its do-no-harm mantra, it still can create quite a few ethical problems for Catholics.

    I earlier used the example of pre-Civil War slavery. Hypothetically speaking, if there were a case regarding slavery before the United States Supreme Court, tied 4-4, and I’m a Catholic sitting on the U.S. Supreme Court, I certainly would not rule to uphold slavery as the law—and with no apology. It seems that the American notion of “justice” is not whether or not a law is in conformity with the natural law, reflecting the eternal law of God. No, rather, “justice” means having laws conform immediately to the written letter of the U.S. Constitution strictly and legal precedence. While this is not immediately a problem (I’m not saying that the U.S. Constitution should be irrelevant), while it is not in and of itself wrong—it does give rise to ethical issues.

    From the originalist viewpoint regarding slavery, a Justice would have to rule in favor of an unjust law which contradicts the very essence of their title: Justice. An unjust law is not a law according to the scheme of the natural law. However, to an originalist, that point is irrelevant. If law is not meant to be in conformity with the natural law, which reflects perfect justice, then our inherent goal is not to uphold real laws at all but human decrees with no consideration or concern of objective conformity with the laws written into Nature. This, to me, seems to be clearly antithetical to Plato’s The Laws, Cicero’s On The Law, Aristotle’s Nichomachean Ethics, and St. Thomas Aquinas’ Treatise on Law which are four of the most important works in the natural law tradition. There is a fundamental disagreement then about the nature of law itself, about the nature of justice, and therefore, the likeliness to reach just conclusions, while not impossible certainly, is more difficult.

    Alexander Hamilton put it this way: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself; and can never be erased or obscured by mortal power.” Even the more secular-minded Thomas Jefferson agreed: The “only firm basis” of freedom, he wrote, is “a conviction in the minds of people that their liberties are the gift of God.”

    These words are clearly a natural law commitment (and I’m not suggesting they are advocating it be used by the U.S. Supreme Court). Yet contemporary judicial philosophy is based largely on the Enlightenment-borne philosophy of legal positivism—that is, there is no inherent or necessary connection between the law and ethics, but rather laws are rules made by human beings entered into a social contract with no regard for moral objectivity because the contract is inherently relative.

    If you consider such broad phrases such as “cruel and unusual” or “unreasonable searches and seizures,” it seems to me that the Founders presuppose that you would reference some sort of objective moral criteria that exists outside of the text of the Constitution to know what constitutes such activity. What is cruel? What is unusual? What is unreasonable? Unless there is some objective, unchanging standards that it is presupposed, that is known and can be known because of a common human nature with an unchanging law—the natural law—then it seems that the “concepts” of these things evolve and change with society; thus, this lends itself to the argument for a “living Constitution” that should be read in light of the relative values of the contemporary people. Yet the “originalists” pore scrupulously over the text for some criteria, the Founders (in a world yet to have fully abandon the natural law) may have presumed to be self-evident, or they commit to some legal precedence judged to be in conformity with their judicial philosophy versus what it may be the Founders actually intended. Again, to what do you reference as the criteria to define such “concepts” (cruel, unusual, unreasonable)? Their time period? Our time period? And barring natural law ethics, it becomes inherently relative, which requires one to inject their “personal values” into the constitutional text.

    Simply put, I cannot fully embrace this judicial philosophy and am rather interested in projects to rethink, reasonably, how to interpret the Constitution and develop an American legal system that is more harmonious with the ongoing project of Catholic legal theory. Though, I will add that originalism does guarantee some sort of consistency in judiciary judgments and protects Americans from arbitrary changes in constitutional interpretation. Moreover, to fully reject originalism there needs to be a ready, clearly articulated criterion for interpreting the Constitution, otherwise the matter of law will be solely at the discretion of political inclinations of sitting Justices. Perhaps, at best, originalism constrains the worse temptation of Justices to overreach.

    But it still remains that originalism isn’t perfect. It faces hermeneutic difficulties to which Justice Scalia admits, when he said, “It’s not always easy to figure out what the provision meant when it was adopted…I do not say originalism is perfect. I just say it’s better than anything else.” That is, anything else so far. So while I am not in favor of a hasty departure from originalism to an anything-goes Court, I’m not going to back the theory.

    I still think that it poses quite an ethical dilemma and I’m weary of the Catholic support it gets despite the fact that its philosophical underpinnings, i.e. legal positivism, are fundamentally contradictory to Catholic moral and social thought. While I am sympathetic to the intellectual commitment to protect the integrity of the legal system and the constitutional order, I don’t think that requires an immediate advocacy of originalism over attempting to find some other way to interpret the Constitution. I am not convinced it’s all or nothing—either originalism or the “living Constitution” theory.

    As Edmund Randolph set out at the Constitutional Convention, the goal was to “insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.” Now, this quote, granted, can be misconstrued and interpreted as advocacy of an “evolving” doctrine in regard to constitutional interpretation. However, it seems to me, that the U.S. Constitution seeks to create a government that recognizes and respects the natural, inalienable rights that are self-evident in the natural moral law which are enshrined within the text of the Constitution. While the “essential principles,” which are moral, cannot change—as the moral law does not change; positive laws, however can. Different situations, different circumstances, different cultural values may have a need for different positive laws to best accommodate and promote human flourishing and the protection of human rights. (I’m not saying these laws come from or should come from the Court.) Now how such a view could reasonably and practically be played out in terms of judicial philosophy is quite a debate.

    Nevertheless, originalism strikes me as too keen on preservation of the status quo, that is, order rather than on actual Justice, ifthe circumstances puts the two in contradiction. It brings to mind Machiavellian principles (which I think is the actual beginning of modern philosophy) specifically the re-definition of prudence as a purely pragmatist virtue oriented more toward some end, judging and weighing consequences, i.e. consequentialist and utilitarian ethics that masquerade as natural law thinking when it really is not. It seems the concern is not necessarily on what is moral, but to what works (pragmatist). Therefore, one of the Cardinal Virtues is employed in such a way that its immediate and direct concern is not necessarily intertwined with its sister virtue of Justice, real justice. And the divorce of the two, characteristic of modern thinking, is precisely what I am arguing against.

    Again, I’m not constitutional law scholar, but I do find it curious that the framers of the Constitution did not indicate, in the text itself, how the Constitution should be read. I have no idea why. Perhaps they could not agree on a method themselves, as we cannot.

    Though, I do wonder if one is arguing “original intent” or “original meaning,” does this include taking into account the fact that the words (diction), come from other common law traditions based largely around natural law thinking? Do you seek to understand the words in those light as to get a greater understanding of the words in light of the historical situation? This might be comparable to using the historical-critical method as a tool for scriptural exegesis. In other words, one would read the U.S. Constitution in light of the Declaration of Independence and the natural law tradition? Or, does one read the text strictly, isolated from such references?

    My question arises because of this: The Declaration of Independence states that all men are created equal. The Bill of Rights establishes natural human rights. Yet in the U.S. Constitution there is legalized slavery. A natural law thinker would see that as a blatant contradiction. If such a matter were before a Catholic on the Supreme Court, should the Catholic uphold the unjust law as a matter of originalist intent even if contradicts the natural law and say, the majority of the United States citizens refused to conform with natural justice and outlaw it legislatively. For instance, what if abortion was a right written verbatim into the U.S. Constitution. Would I have to be complicit with an intrinsic evil until such a time that society changed its mind? I know I certainly wouldn’t. I am not sure if any oath or commitment can exempt you from stopping an objective moral evil. Consequences aside, as judging whether or not to end slavery or abortion based on how the populace will respond is judging the rightness or wrongness of the act based on the consequences–which again, is consequentialism and not natural law morality. The problem again persists.

    This is the challenge and difficulty of natural law jurisprudence, of which, I am profoundly interested in. Perhaps, I should send Prof. Robert George, a proponent of the “New Natural Law Theory”, another email and ask him a few questions about the matter; he usually replies rather quickly.

Scalia on Stare Decisis and Roe

Sunday, March 22, AD 2009

Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia.   Justice Antonin Scalia on stare decisis and Roe.  By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world.  Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist.  This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation.  We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.

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2 Responses to Scalia on Stare Decisis and Roe

  • Roe can be defended solely on an outcome-based (if you are pro-choice) criteria. It is an abomination from a constitutional perspective. What’s worse is that I think Casey is an even greater atrocity, and I’ve always loved Scalia’s dissent. It sums up what’s wrong with it so perfectly.

  • I’m not going to sit in judgment of the soul of anyone. Lord knows, I’ll have enough of my own failures to answer for on the Day of Judgment.

    But let’s just say I’m glad that a last-minute switch in the Casey decision to preserve the abomination of Roe v. Wade for at least another generation won’t be one of the things that I’ll have on my conscience when I answer to the Lord for my treatment of the least of these.