Celebrating the Faith of Scalia on Patheos

Monday, February 15, AD 2016

 

 

Sister Theresa Aletheia  Noble at her Patheos blog site put up a post entitled Justin Antonin Scalia and the Foolishness of Christianity in which she recalled a speech by Scalia that she had attended prior to entering the religious life.  It is a very good post:

 

Scalia then went on to discuss the roots of this scorn for deep faith, even in the United States, a country that is widely considered to be deeply Christian from its very beginning. But Scalia pointed out that even among our Founding Fathers, this scorn for anything without sound rational basis (in their opinion) was evident.

Thomas Jefferson, a son of the Enlightenment, once revised the Gospels to “remove the gold from the dross.” Jefferson was convinced that the Gospels had some worthy information and some information that was added later by his “superstitious biographers.” Jefferson’s version of the life of Jesus removed the miracles, included some of Jesus’ ethical teachings, and then ended abruptly with Jesus’ death and the stone rolling over the tomb.

Scalia then went on to talk about a more modern example of the blindness of a rationalism gone too far. A priest near his home in DC was discovered to have the stigmata and statues would weep when he was near them. A Washington Post reporter witnessed the statue weeping and could only say, “There’s has to be a trick here.” Scalia asked the crowded room why non-believers don’t flock to places like this to verify for themselves. The answer is obvious he said, “The wise do not investigate such silliness.”

The wise do not investigate such things as the Resurrection or miracles because they believe they are informed enough about the world to know that such things are impossible. Therefore, they assume that people who actually believe in miracles are foolish and peasant-like. But they base their beliefs, not on investigation, but on flat out rejection of the possibility.

I can certainly relate to this arrogance. When I was an atheist, I disdained Christianity and believed that Christians were ignorant because their views did not fit in with my world view. This type of thinking is rampant in our society and is only too evident with discussion regarding such things as the Catholic view of contraception or Christian beliefs regarding marriage. The point of view of the wise is that only bigoted idiots would believe the things we believe. There can be no other explanation in the minds of the worldly wise. Our point of view is not even thought of as rational enough to be considered.

Scalia ended his talk by considering St. Thomas More, a man who died to defend a corrupt Church and papacy, and considered by many, including his wife, to be a fool for accepting martyrdom. More gave his life because he refused to sign an oath that disparaged the pope and Henry VII’s marriage to Catherine of Aragon. Scalia pointed out that Pope Clement XII, the pope during the time of More, was not one of the most reputable popes in history. And yet, More saw beyond the current circumstances and believed in the permanence of the Church that Jesus established.

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Scalia on Roe

Friday, January 22, AD 2016

 

There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Justice Antonin Scalia, dissent, Planned Parenthood v. Casey (conclusion)

 

 

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Massachusetts Abortion Clinic Bubble Zone Law Struck Down

Thursday, June 26, AD 2014

 

 

Today a unanimous Supreme Court, in MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, struck down the Massachusetts “Bubble Zone” law, keeping pro-life protestors  35 feet away from abortion clinics, as a violation of the First Amendment.  That is a good thing.  The bad thing is that it was authored by Chief Justice John Roberts, and I will let Justice Scalia explain what a limited victory for the pro-life cause this is, and what a disappointment it is that the Chief Justice wrote it.

 

JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).

The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment . But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily-or at least unnecessarily insofar as legal analysis is concerned.

I disagree with the Court’s dicta (Part III) and hence see no reason to opine on its holding (Part IV).

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13 Responses to Massachusetts Abortion Clinic Bubble Zone Law Struck Down

  • Only truth has free speech.

  • “Public streets and sidewalks are traditional forums for speech on matters of public concern.”
    Is that really the law in the US? Ours is quite different. In McAra v. Magistrates of Edinburgh [(1913) S.C. 1059], the Lord President (Dunedin) said, “As regards the common law, I wish most distinctly to state it as my opinion that the primary and overruling object for which the streets exist is passage. The streets are public, but they are public for passage, and there is no such thing as a right in the public to hold meetings as such in the streets.”
    As for the right of free speech, he said that it undoubtedly exists but that: “the right of free speech is a perfectly separate thing from the question of the place where that right is to be exercised.”
    Hence, the common request by police officers to “Move along, there” and why demonstrations usually take the form of marches.

  • “Is that really the law in the US?”

    Yep. Parade permits normally have to be obtained if one wishes to march in the streets. Sidewalk protests in the US, completely unlicensed, are not uncommon. I walked through an anti-war one on public sidewalks, ironically aimed against Obama by far Leftists, after my family and I had lunch at a pub in downtown Urbana on the Saturday before Memorial Day. This group has been holding similar weekend protests in Urbana since 2003.

    https://www.aclu.org/free-speech/know-your-rights-demonstrations-and-protests

  • “Only truth has free speech.”

    No, since people differ on truth and many disagreements do not involve truth per se, or involve clashing truths: i.e. state’s rights v. freedom in the Civil War. Most tyrants throughout History, as they throttled the free speech of those who opposed them, would piously proclaim that they were only defending truth.

  • Agree, Donald. Man is not God, and by virtue of his fallen nature will always have a weak grasp of Truth. Hence we grope for it clumsily and with limited success, but it is important and we struggle and argue over it necessarily. Free speech is a key means by which we can make progress. It leads to Truth, however haltingly and imperfectly.

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  • “I wish most distinctly to state it as my opinion that the primary and overruling object for which the streets exist is passage”
    MPS, sidewalks in the U.S. are for passage also. However, we recognize that the right of the pedestrian for passage is usually not hindered by people who are exercising their free speech rights. Perhaps the sidewalks are just smaller in Scotland?
    We have recently had a spat of demonstrations by groups called ‘Occupy Wall Street’ or OWS. These groups did block sidewalks, to the consternation of many. All U.S. venues have laws that prohibit this, but the police often were reluctant to enforce them due to media sympathies for OWS and the knowledge that certain judges will go too far and agree with the OWS claim that their blockage is itself an exercise of free speech. The police would only act in the most outrageous situations.

    You may ask yourself, how did these judges get this idea? It all goes back to the civil rights movement of the 1960’s, with the protests against legal segregation. The civil rights protestors maintained their blockage of sidewalks and entrances to segregated establishments was the only effective way they could protest and thus was an act of speech. What people forget is that those protestors never saw their actions as an act of free speech: they were not challenging public order laws in general, and fully expected to be arrested. In fact they were a bit apologetic about it, even as they maintained the necessity to do so. Today’s protestors claim their mantle but also claim their public disorder to be free speech. It’s a much different world, and in this regard not a better one.

  • The English law on the subject was stated by Lopes LJ in in Harrison v. Duke of Rutland ([1893] 1 Q.B. 142) Harrison was on a road running across the Duke’ land and was interrupting a shoot by scaring game away from the butts.
    At p. 154 he said: “The conclusion which I draw from the authorities is that, if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil, who has, subject to this easement, precisely the same estate in the soil as he had previously to any easement being acquired by the public.”
    In Hickman v. Maisey ([1900] 1 Q.B. 752) it was held to be a trespass for someone (a racing tout) to use the road as a vantage point for observing and timing the performance of racehorses undergoing trial for an hour and a half. The same would, no doubt, apply to paparazzi on a stake-out, if the owner of the soil took exception.
    The law of Scotland is the same.

  • “Roe v. Wade has exerted a poisonous influence on the courts as laws, and traditional judicial modes of interpreting laws and the Constitution have been twisted and warped to protect the sacred [rite, ahem] right of women to slay their offspring.”
    Of course, it isn’t just Roe v, Wade, but the continuing love of abortion and the need to justify it that is poisonous.

    ” Imagine the damage that the Dred Scott decision would have done to American jurisprudence if it had not been overruled by the Civil War…”
    I have never seen this thought expressed, but it is so true. The Dred Scott decision would have infested the courts and generated more and more evil fruit with each case that relied on it as precedent. Arguably the timing of the Civil War and the postwar amendments to the Constitution saved this country from many legal monstrosities; a Civil War delayed to 1890 or 1900 would have allowed for a half century of bad precedent that even a Union victory could never repeal. Up for a novel, Don?

  • Every time Piers Morgan talks, I lose a brain cell.

  • Pontius Pilate asked of Jesus Christ, his prisoner: “What is truth?”
    .
    Truth is the absolute and perfect absence of evil. Pilate no longer recognized his own pure innocence and his soul created in perfect innocence. Jesus’ presence testified to Pilate’s guilt in not willing to stay pure and innocent, morally and legally innocent. It was incumbent upon Pilate, as governor of Judea, to defend truth and innocence, as it was Pilate’s function to deliver Justice and determine guilt; to judge the nation. Jesus stood as a witness against Pilate’s failure to be both a man and a leader.
    .
    “The truth, the whole truth and nothing but the truth, so help me God.” ought to have been Pilate’s constant prayer.
    .
    The obvious answer to “Who is truth?” is the three persons of the Blessed Trinity, Jesus Christ, true God and true man, and the Blessed Virgin Mary, who, filled with the Holy Spirit from creation, willed to be in perfect conformity to the will of God. To Mary, God gave the special privilege of the Immaculate Conception, the grace to have her pure and innocent desire fulfilled by God and to remain a virgin for all time. The next answer to: “Who is truth?”: is the newly begotten sovereign person, who is created in perfect and absolute innocence, moral and legal innocence, for God does not create sin or evil, and who must be visited by the sin of Adam, and who must desire to remain an innocent virgin as God created him and avoid the sin of Adam.
    .
    Truth is the absolute absence of evil and in this, truth is absolute. If it is not true, then it is a lie. Unalienable human rights must be endowed by an infinite God of absolute truth. Finite human rights endowed by a finite state, that is, a state constituted by men, with a beginning and, therefore, an end, cannot endow unalienable human rights because it is, of itself, alienable. “it is the right of the people to alter or to abolish it, and to institute new government,” The Declaration of Independence. The finite state cannot endow unalienable human rights. The finite state can only endorse the human rights endowed by “our Creator”.
    .
    Pornography is a lie about the human being, his creation in perfect innocence and virginity and impacts our constitutional posterity by setting an evil precedent of ignoring the innocence and virginity required to establish Justice “to secure the Blessing of Liberty to ourselves and our posterity.” From the Preamble to our Constitution.
    .
    Pornography profits from catering to the sin of Adam and therefore is not free or absent of evil. Abuse of the human being, body and soul, inheres in pornography. Pornography may be described as soul murder. That pornography was given freedom by the Court, while it is addictive and imprisons the soul, is a miscarriage of Justice.
    .
    Abortion destroys our constitutional posterity. Justice cannot be established by destroying the most innocent among us. Innocence, the absence of evil, is the compelling interest of the state and the indispensible reality for establishing and preserving Justice. “establish Justice” from The Preamble. Abortion violates the Preamble, the unchangeable purpose of the Constitution.
    .
    Sodomy denies the soul of the human being. Denying the human being composed of body and rational immortal human soul is a great lie.
    .
    Like prohibition with alcohol, abortion and pornography and sodomy might never become outlawed, but abortion, pornography and sodomy must be identified by the state as the evil they perpetrate. These evils must never be allowed. These evils must be outlawed, as for the common good and general welfare of the nation, and most certainly must not be supported by the laws levying taxation upon the innocent souls in our nation. Forcing innocent souls to support evil through public allowance of evil and levied taxation is taxation without representation.
    .
    If Hobby Lobby is not represented by our nation, or Hobby Lobby’s constituency is used against it, Hobby Lobby cannot be forced by its citizenship or constituency, which have been denied to it, to support a nation which refuses to acknowledge his citizenship and constituency. If Hobby Lobby does not win this judgment, Hobby Lobby will have been again denied his citizenship, his constituency overruled, and again refused to be represented and acknowledged.
    .
    Justice is of God.
    .
    All the state endows is citizenship and a tax bill at birth of an innocent soul. Taxing that innocent soul without representation is unconstitutional. Taxing that innocent soul without acknowledgement of his soul is unconstitutional and irresponsible.
    .
    The truth will set us free.

  • If same sex couples can come into bakeries to harass and sue for access to the bakery’s time and talent, and people out dining may come into the kitchen of restaurants at will to check on cleanliness, then, surely abortion clinics, which are places of commerce and are not non-profits cannot deny any person the freedom to come onto their premises to inspect, inform themselves, or to pray the rosary.
    .
    There is an excellent example in Obamacare coming into Hobby Lobby, a place of commerce, and not a non-profit, and making demands under penalty of law, that the corporation give to their workers a benefit to which the owners in good will, object. The government has no business, at the business, telling the owners and workers how the business will be run.
    .
    Supreme Court Justice Antonin Scalia has brought to the fore the question of changing the Constitution without three quarters of the states ratifying this, or any change. The change from “due process of law” to “substantive due process of law” gives the court the freedom to write law and rewrite the Constitution, a power reserved to the people. “substantive due process of law” may decide who is given due process of law and who is denied due process of law, as in the case of the newly begotten sovereign person’s being accused of murdering, or causing the death of his mother. In the case of abortion to save the life of the mother, death must be imminent. In “substantive due process of law”, the court has usurped legitimate authority to serve its bias against human life, and human beings’ right to life, and our founding principles that all men are created, not born, equal.
    .
    The Fifth Amendment, in the takings clause, has also been changed in collusion, from private property being taken “for public use” to private property being taken for public purposes” giving government and local officials total power over all private property under their control, and without the change being ratified by the states and without the people being notified of the change and without the change being put to the taxpayers’ vote. It is the government official who decides what is “public purposes”, without ratification or the peoples’ consent.
    .
    When an ordinary person serving in the capacity as government can overrule the will of the people, we are no longer the land of the free, we are subjects to the whim of an imperfect individual.
    .
    Donald your interpretation of Antonin Scalia is superb.
    .
    Michael Paterson-Seymour: ““As regards the common law, I wish most distinctly to state it as my opinion that the primary and overruling object for which the streets exist is passage. The streets are public, but they are public for passage, and there is no such thing as a right in the public to hold meetings as such in the streets.””
    .
    If people, persons, were monuments of stone in the passage way this law is true, but people deserving of respect and courtesy may be petitioned to give way or allow passage at will, barring assault and battery. The people at abortion mills are the most humble, peaceable, and generous.
    .
    All public lands and waterways belong to the people in joint and common tenancy. We own it all and I own it all, and therefore, the sidewalk cannot be reserved to serve the bias of the courts.

  • Clay: “Every time Piers Morgan talks, I lose a brain cell.”
    .
    I loved the way Scalia held his own and gave no ground to the bully.

Let’s Ignore That Pesky Constitution

Monday, December 31, AD 2012

 

 

Louis Michael Seidman, a professor of Constitutional Law at Georgetown (surprise!), doesn’t think much of the Constitution as he explains in an op-ed in the New York Times:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?       

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.       

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Of course we should still obey those parts of the Constitution that Professor Seidman likes:

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.       

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.       

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

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50 Responses to Let’s Ignore That Pesky Constitution

  • “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.” John Adams

  • I remember a book about rewriting the Constitution coming out just after Obama’s first election. I didn’t read anything about it but I believe its premise was essentially that of Prof. Seidman.

    This of course is part of the long-term project of the Left. The Constitution stops their control of power. More of this to come for sure.

  • The man reveals that he has no business teaching constitutional law, and, one might wager, never did.

    Legal security requires that positive law be respected. If you do not care for the positive law, advocate altering it through the mechanisms it provides. Does this occur to Prof. Seidman?

    Actually, though, we would probably be better off with a body of constitutional law enacted by statute (with interstitial case law) as they do in Israel and New Zealand than with the system we have now. As of now, any statutory enactment can be annulled by a set of tenured lawyers meeting in secret. The lawyers in question usually reflect the tastes and prejudices of the elite bar and the law professoriate and have a structurally antinomian world view, just like this character. Let’s ignore the whole thing and tell Prof. Seidman to get stuffed.

  • Necessity a.k.a. the common good is the alibi of all tyrants.

    From Instapundit: “I dunno. Does this mean we should ignore Roe? Or Miranda? And Baker v. Carr? And if the Constitution is this obsolete and “evil,” then maybe secession isn’t off the table after all? . . . .”

    “It’s beyond even that. Their entire authority comes from the Constitution, and is the only reason we aren’t entitled simply to ignore them, or hang them from a tree for their insolence. Take away that source of authority because you don’t like the constraints it involves, and you’re a lot closer to the tree. Those who think themselves above the law are not in a position to hide behind it.

    “MORE: On Facebook, Randy Barnett snarks: ‘I suppose this means the income tax could now be unconstitutional if we can just get 5 votes.’

    “MORE STILL: Reader Bill Bacon writes: ‘If, after all, the Constitution isn’t to be followed then doesn’t that mean we default to the Articles of Confederation? Don’t know about you, but I personally like the idea of having to get unanimous consent of the states to raise taxes….’ Heh.

    “Related: New York Sun: The Times Gives Up .’It will be illuminating to see how far the Times takes its latest lament, particularly because these days the Left generally seems to see the Constitution as a threat more to the liberal than the conservative cause.’ As I say, that’s an admission of sorts.”

    No one would know what is law and what not. Whimsical gangsters running unchecked/unlimited government will decide. Talk about uncertainty.

    The ruling class will support it. To the ruled class, “We know what is good for you, shut up!”

    From Marcus Lucanus, “Pharsallia”, “Here I abandoned peace and desecrated law; fortune it is you I follow. Farewell to treaties. From now on war is our judge!”

  • No one would know what is law and what not. Whimsical gangsters running unchecked/unlimited government will decide. Talk about uncertainty.

    What is disconcerting is that the person sending up this trial balloon is a law professor – someone who argues for a living and teaches others to argue for a living. He does not seem to have thought this through. Neither has the editor of the op-ed page.

    The liberal arts college I know best had a provision in its faculty handbook which allowed the provost to dismiss a tenured professor whose medical or psychological condition prevented him from working. A septuagenarian philosophy professor abruptly retired in 1998 and the word on the street on that campus was that he was told he could retire or face dismissal under that clause. He had been manifesting peculiar behavior for about five years at that point. The Alzheimer’s diagnosis was made about a month after he taught his last class.

    The law dean at Georgetown needs to read the little used clauses in faculty contracts.

  • …but to overthrow the men who pervert it.”

    What then, when the perverted make up the leading body? When the perverted continue to vote the perverted in? What next?
    This Constitutional expert might want to step out of the cesspool and rinse off.

  • I have mentioned Orestes Brownson and his ideas about Catholicism and America before in these comments. From:
    http://www.ewtn.com/library/HUMANITY/ZAMERDEM.HTM
    I get the understanding that the framers built better than they knew and that

    Brownson concluded that Americans think both falsely and detrimentally about liberty when they believe that the Constitution is their own creature to be manipulated at will. “

  • The thing is that those who justify their activist ideas under the guise of the philosphy of a “living breathing” Constitution is that they don’t actually believe that the Constitution is living and breathing because every living organism grows in an organic manner. And their understanding of the Consitution is anything but that!

    Robert George wrote an interesting article about a decade ago on Lincoln and his concern about judical despotism:

    http://www.firstthings.com/article/2007/01/lincoln-on-judicial-despotism-16

  • I’ve heard it said that when it rains, the Angels are weeping. Beginning to think that for the past few years it has really been the Madisons (James and Dolly) and the rest of the Founding Fathers.

  • Jefferson wrote to Madison on September 6 1789: “it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. ”

    He goes on to argue that a right of amendment or repeal is not a satisfactory equivalent.

    Jefferson clearly embraced the concept of law as an expression of the general will.

  • Jefferson clearly embraced the concept of law as an expression of the general will.

    Something of interest to Jefferson aficionados. Never been true in this country.

    The trouble we have had for about 60 years now is the belief that the law should be a function of the volonte generale of the appellate judiciary and their friends in the academy. Canada developed a particularly virulent case of this social disease when the country foolishly patriated its constitution with Pierre Trudeau’s repellant “Charter of Rights” appended. Figures in Israel’s judiciary would clearly like to seize this sort of discretion but are constrained by the capacity of the Knesset to put them out of business. The expression of this in Europe is not judicial misfeasance but the abuses of the European Commission, &c. The regime class is all over the occidental world and needs to be forcibly dispossessed.

    The political theorist Gottfried Dietze contended that the Anglophone world had seen repeated instances of what he referred to by the odd term ‘diffidatio’. He thought they occurred on cycles measured in centuries and that we were due for another. The baron’s mutiny which produced the Magna Carta, the revolt against Charles I, and the American Revolution were examples he offered of a social mechanism restoring ordered liberty. Our enemy in this country is not anything so discrete and forthright as an abusive crown. It is a whole social system whereby everything is put under the supervision of lawyers advised by the academy and the helping professions and justified by systemic mendacity (courtesy the bar, the academy and the dependents in the press corps).

  • Art Deco

    As Jefferson says, in pointing out thatt he power of repeal is not an equivalent:”But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”

    It is worth also recalling his view on the September Massacres: “”Many guilty persons fell without the forms of trial, and with them some innocent. These I deplore as much as anybody. But—it was necessary to use the arm of the people, a machine not quite so blind as balls and bombs, but blind to a certain degree—was ever such a prize won with so little innocent blood?” If he believed that maintaining the constitution was “an act of force, not of right,” he was plainly not a man averse to the people asserting their rights.

    He was more of a Jacobin, than is commonly acknowledged.

  • MPS, I am no history buff, but what you said about Jefferson’s view of the September Massacres in the late summer of 1792 in France indicates that he believed the ends justified the means even though he deplored much of what happened in the means: the loss of innocent life. The Roman Church was severely persecuted during this period, principally because Pope Pius VI refused in 1791 to give support to a civil Cnstitution that attempted to re-organize the Church hierarchy based on the will of the “peepul.” Here is a link to his letter: http://www.ewtn.com/library/encyc/p6charit.htm. I do not understand how anyone could think the bloody violence of the French Revolution was a good thing. This is 1st Samuel chapter 8 taken to an extreme. And in today’s Amerika we may yet find the “peepul” to become as ruthless and bloodthirsty as those in France in the 1790s.

  • MPS, Jefferson’s correspondence is just not that important. That was not how political institutions were structured in 1800 and that is not how they are structured today. If you are fascinated with Jefferson the person or with a history of controversies and currents of thought in the latter 18th c. anglosphere, I suppose his opinions are interesting.

  • And in today’s Amerika we may yet find the “peepul” to become as ruthless and bloodthirsty as those in France in the 1790s.

    Cud-chewing indifference and the celebrity culture are much more of a problem among rank-and-file Americans than the formation of mobs. Look at the statistics on lynching over the period running from 1893 to about 1946. They tell a story of a declining propensity or capacity to engage in violent collective action. Where you see mobs and riot today, it is almost invariably in connection with public entertainments like sporting events, carnivals, and rock concerts.

    Our real problem is not with mobs, but with the social strata and occupational subcultures which fancy themselves our betters.

  • Art Deco, I think that I have to agree with you. However, isn’t the end result the same: eventual persecution of the Church?

  • MPS, Jefferson’s correspondence is just not that important.

    To the degree that his ideas have been incorporated and implemented by the left, unfortunately they are.

  • Paul W. Primavera & Art Deco

    I quote Jefferson, not because I agree with his views, but because Jefferson was far from being an unimportant figure in the American Revolution.

    His views on the Church are quite explicit: “This principle, that the earth belongs to the living and not to the dead, is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions, whether the nation may change the descent of lands holden in tail; whether they may change the appropriation of lands given anciently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity; whether they may abolish the charges and privileges attached on lands, including the whole catalogue, ecclesiastical and feudal; it goes to hereditary offices, authorities and jurisdictions, to hereditary orders, distinctions and appellations, to perpetual monopolies in commerce, the arts or sciences, with a long train of et ceteras”

    In that year of 1789, the theory that political power comes from those over whom it is exercised, and depends upon their will; that every authority not so constituted is illegitimate and precarious; that the past is more a warning than an example; that the earth belongs to those who are on it, not under it, was obviously current on both sides of the Atlantic.

    Hamilton, by the by, called the Constitution, “a frail and worthless fabric, and a temporary bond.” John Adam, an aristocrat at heart (which Jefferson was not) declared that “No Republic could ever last that had not a Senate deeply and strongly rooted, strong enough to bear up against all popular storms and passions. That as to trusting to a popular assembly for the preservation of our liberties, it was the merest chimera imaginable; they never had any rule of decision but their own will.”

  • To the degree that his ideas have been incorporated and implemented by the left, unfortunately they are.

    I suspect that rather tends to exaggerate the erudition of working politicians and social policy wonks. However, you’re the intellectual historian, not me, and you have the Congressional staff post, so perhaps you can elaborate. Daniel Patrick Moynihan once said that in nearly twenty years in politics and government, he had never had a discussion of ideas. Have things changed? It is difficult to believe that Louise Slaughter (to take one example) would know Jefferson’s correspondence from a cheap romance novel.

  • The Constitution affirms that the sovereign personhood of each and every individual citizen constitutes government and that government is the servant of the people. The Costitution also affirmes that there is a Supreme Sovereign Being (there can be only one Supreme Sovereign Being, as two preempt each other) WHOM sovereign persons must acknowledge in thanksgiving for Divine Providence. God, Whom we all must be free to worship, as only God has endowed unalienable rights, eternal truths that our founding fathers inscribed in our founding principles. As Justice Scalia states: Our Constitution has got us dead to rights. America is the only nation on the face of the earth that guarantees freedom, truth and Justice.

  • Art Deco: “Jefferson clearly embraced the concept of law as an expression of the general will.”
    The law must bring us Justice and Truth, therefore, a majority of one in Truth and Justice that all persons might be free. E Pluribus Unum. Jefferson clearly embraced the concept of law as an expression of good will. Peace on earth to men of good will.

  • People often accuse the Right of being anti-intellectual. It’s hard to imagine a more anti-intellectual approach to law than:

    Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

    Simply staggering.

  • Fascinating discussion! Happy 2013!

  • “Jefferson clearly embraced the concept of law as an expression of the general will.”

    Jefferson reject the authority of the Church and 2000 years of Sacred Tradition in having created his very own Bible:

    http://www.beliefnet.com/resourcelib/docs/62/The_Jefferson_Bible_The_Life__Morals_of_Jesus_of_Nazareth_1.html

    Would not such a person that believe that all rightful authority comes from the “peepul” and not from God?

    I do not denigrate Jefferson or his memory, and he certainly was a great man. Nevertheless, in being a man, he was sometimes (maybe oftimes) wrong.

  • Mary, I have not read Jefferson’s letters. You are confounding my views with those of Michael Patterson-Seymour.

  • John Adam, an aristocrat at heart (which Jefferson was not)

    John Adams was an attorney living and working in the village of Braintree, Massachusetts. Thomas Jefferson was a country squire. Why is a member of the bourgeois and proto-urban sliver of colonial America an aristocrat at heart and a man occupying a position analagous to the British gentry something else?

  • The Reign of Terror in France was nothing more than the Act of Supremacy in England, power run amok. Jefferson worked against the Reign of Terror coming to America after the Revolutionary War. Jefferson wanted something better for America. We had men of honor: George Washington who declined a crown to be king. Francis Marion, the Swamp Fox, who refuse to take vengeance and restitution against those who supported England duing the War of Independence, after the peace treaty was signed. It seems that our Reign of Terror came before and precipitated our Declaration of Independence. Our Amendments do not change the Constitution, but reinforce every right and freedom. If the Constitution must be amended let it be to make it stronger and more precise.

  • Art Deco: “Mary, I have not read Jefferson’s letters. You are confounding my views with those of Michael Patterson-Seymour.” Yes, you are correct. The general will or the will of the people must be of a people of good will for the common good. Moving foward in good will. Do accept my apology.
    Mary

  • Discussing the various personalities and states of life of those founders is not as interesting to me as the philosophical understanding of what it means to have a constitution, where it came from and how it was possible. America’s “providential” or unwritten constitution underpins our Constitution written by TJ etal. ??
    In the article I submitted to you “The written constitution is merely legislative; only a people who are already constituted can lay down the law. An unwritten constitution is always the precondition for a written constitution, and it sets limits to what the written constitution can reasonably accomplish. “?

    In these comment boxes many are talking in effect, about the contract.
    I wonder if we no longer have the precondition to have such an agreement?

    “American founders had as “givens” the republican form of government from Rome, science and art from Greece, British political institutions and the Christian truth about the rights of human beings — “the rights of beings who are both part of and transcend by their natures a particular political community.” (Lawler) ?

  • America’s “providential” or unwritten constitution underpins our Constitution written by TJ etal. ??

    There were 55 delegates to the convention in Philadelphia in 1787. Jefferson was not one of them. George Washington was there, Benjamin Franklin was there, Alexander Hamilton was there, James Madison was there, Elbridge Gerry was there. Adams and Jefferson were not.

  • : ) of course you are right Art. I goofed – and I know better– but still asking whether or not we have the social underpinning for the Constitution.. as did the culture that was able to declare a Declaration and constitute a Constitution

  • Waal: here is what the sociopathic Mr. Trudeau persuaded Canadian legislators to accept:

    http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-39

    Be most pleased if Dr. Zummo would publish an annotation and critique of form and content.

  • I just keep looking over that editorial trying to articulate exactly what’s wrong with it, but there’s too much wrong with it. It is, simply put, completely wrong. There’s nothing you can point to and say “this is where his thinking went off the rails”. It was never anywhere near the rails.

    But just to keep myself from going nuts, let me spell this out. He says that Congress shouldn’t be bound by rules like the origination of spending bills from the House. But he also says that there should be two houses of Congress. Well, where is the list of rules that we should retain or ignore? What is the algorithm? If none exists, how are we to determine which rules are obsolete? He says that on the flexible points (without defining which ones are flexible), each party should have to make its case on the grounds of the political moment. Make the case to whom? It bothers him that, since Supreme Court decisions have been written from differing legal theories, a person can’t agree with them all. How are people going to come to agreement without any legal theories? Even if you want to call such an environment “law”, and I don’t see how you could, you could never call anything settled law, because there’s no means to settle anything.

    Art suggests that there’s mental illness involved. I think he’s right. And I know that a newspaper doesn’t necessarily endorse every opinion piece it publishes. But even if the professor has lost his mind, how can the NYT justify printing his editorial?

    The thing is, the author isn’t advocating for liberal policies. The only underlying ideology that could allow his approach is nihilism. That rules which has power to rule.

  • Be most pleased if Dr. Zummo would publish an annotation and critique of form and content.

    Wait, now I’m being given homework?

    Just one correction for Art – don’t work for Congress, though I know plenty that do. You’re probably right about their understanding of political philosophy.

  • To clarify my previous remark: I was referring to Congressmen, not the staff. If the people that I knew that worked for Congress were actually members – including the liberals – it would be a marked improvement.

  • Let’s ignore the pesky president. Let’s ignore the lousy laws. Let’s ignore the crass calumnies. Let’s ignore mealy-mouthed minions.

    From James Scott’s book, Two Cheers for Anarchy, quoted by Instapundit in late November 2012,

    “One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called ‘Irish Democracy,’ the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.”

    Let us become ungovernable.

    “To burst in twain the galling chain, and free our native land!”

  • Wait, now I’m being given homework?

    I do not make assignments, but Tito Edwards lets you post. Anzlyne wants to know what you get in positive law if the cultural underpinnings which attended the original constitution are removed. Pierre Elliot Trudeau’s handiwork, promulgated in 1982, gives us a notion (all the more so because the man was Canada’s answer to John Edwards).

  • Please let me clarify “good will”. If 99.9% of the will of the people voted for abortion, ssm, pornography, prostitution, and only 0.1% voted for the Right to Life, virtue, virginity and innocence, the 0.1% will of the people would become law, because this 0.1% has maintained their sovereign personhood in truth to constitute the government. It is the duty of government to protect and defend the good of the people as man is created in virginity and innocence. Corruption does not have freedom of speech, press or assembly. Only truth has freedom. Vice may not be validated. Crime may not be legalized. Only 0.1% of the people may constitute government, the rest have become outlaws and separated themselves from the truth.
    Informed sexual consent begins at emancipation, eighteen years of age. Yet, Justice Ruth Bader Ginsberg has advocated informed sexual consent for girls of fourteen years of age in her book. Of course, the Legislature passed the fourteen years of age as informed consent behind closed doors on Christmas Eve, legalizing rape and prostitution. When the people learned of it, the Legislature moved the age to sixteen and cheated all the young out of two years of security and the rest of the people out of our right to the truth and the blessings of Liberty. The newly begotten sovereign person endowed with unalienable rights by our Creator is the standard of Justice in legal and moral innocence and virginity and constitutes the state with his sovereign personhood endowed by our Creator. The one cell at conception does the will of God by existing as a human being. Lies about fake husbands and fake wives are perjury in a court of law as are lies about human sexuality in pornography.
    Good will is the will of the people who are in conformity with all unalienable rights endowed by our Creator.

  • Anzlyne

    “The written constitution is merely legislative; only a people who are already constituted can lay down the law.”

    That is true, for the nation precedes the state: unlike the state, it is not mechanical in its construction, but organic in its growth. As Mazzini, “They speak the same language, they bear about them the impress of consanguinity, they kneel beside the same tombs, they glory in the same tradition; and they demand to associate freely, without obstacles, without foreign domination, in order to elaborate and express their idea…”

    Of course, the national will embodies the national character, which pervades the natures of its members and expresses itself in their actions.

  • I was just joking, Art.

    Having glanced at the document, what strikes me more than any particular point is the length of it. The Framers originally resisted incorporating a Bill of Rights precisely because they thought an enumeration of specific rights would have indicated that anything not mentioned was not protected. The 9th Amendment was their way of addressing this problem, but I’m not sure it has worked as intended.

    Of course our particular Bill of Rights was shorter and broader. This points to a much different conception of the role of government. If you are developing a government that you believe will have a fairly minimal role in society, then you would not deem it necessary to create an extensive list of basic rights. That the Canadian Bill of Rights (or Charter of Freedoms) runs so long tells you all you need to know about how its framers viewed the role of government in society. The bigger the leviathan state, the more rights you have to specifically enumerate. Note the length of the 1924 Soviet Constitution.

  • Paul Zummo

    It is interesting to compare the Bill of Rights, with the contemporaneous Declaration of Human & Civic Rights (26 August 1789)

    http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf

    It is a short document, two pages in length. It is a recognition, not an enactment of rights: “the National Assembly recognises and declares, in the presence and under the auspices of the Supreme Being, the following Rights of Man and of the Citizen.”

    Some notable features are the enumeration of “the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression (Art 2), the exclusive sovereignty of the nation (Art 3), law as an expression of the general will, which must be the same for all (Art 6) the accountability of all public officials (Art 15- this was particularly directed at the immunity of the Crown) and the laconic Art 16 – “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.”

    Most modern national and international declarations of rights draw on both the American and French models, although, for some reason, the right of Resistance to Oppression tends to be downplayed, or, even, passed over in silence.

  • Thanks Mary De Voe. If the will of the people is not good or does not even seek standards of good, a constitution for a democracy that could endure seems impossible. The constitution becomes “pesky” and irritating like some kind of a harness that chafes.
    ..which reminds me of the “dog joy” a sled dog shows when the kennel is approached by the master with a harness in his hands…. Of course the dog is
    not a philosopher, but the animal does recognize that the freedom to run comes with that particular constraint.

  • Thanks be to God, Anzlyne: In the matter of free will and the will of the people, only good will is free, otherwise, “the people” are impugned, denigrated and violated. When a sovereign person consents to commit a sin and crime his sovereignty over himself is diminished. Diminished capacity is recognized in a court of law, but this is different, in that, the sovereignty of the person endowed at conception is perfect, but with the consent to crime, the person’s sovereignty is diminished, so that, the person may not constitute the state with or without his sovereign personhood. The criminal cannot become a citizen of the state, a state that he has not constituted, and because he has not constituted it, the state is not there for him. Taking citizenship to another sovereign person’s state, one must adhere to the principles adhered to by the other sovereign person.

    In denying to the sovereign person, the human being, his divine destiny in being composed of human body and immortal, rational soul, and in denying his endowed civil rights, and trying to deny to the sovereign person, another citizen, the practice of his endowed unalienable rights, the atheist diminishes, compromises and may be forfeiting his own sovereignty, to the degree of his consent to deprive another citizen, who is a sovereign in his own right. The atheist loses his ability to constitute the state. Without his sovereignty, the atheist has no authentic sovereignty to constitute the state.

    The Freedom from Religion Foundation is good for atheists but for people of faith, it becomes the Freedom from Freedom of Religion Foundation. To the degree that the atheist conspires, intends and consents to deny to another citizen the acknowledgement of the other citizen’s sovereign personhood and his unalienable rights, the atheist diminishes his own sovereign personhood and forfeits his unalienable rights. The atheist becomes a traitor to our founding principles, an outlaw, exiled, cut off from his people.

    In the Catholic Church, those members who conspire and consent to do evil, abuse other sovereign persons, no matter what age, self-excommunicate themselves, to the degree of the sin and crime, immediately upon surrendering their sovereign personhood to the evil. The evil doers are separated from the Body of Christ.

    The Catholic Church was instituted by Jesus Christ to offer worship to God and to continue Christ’s work in bringing souls back to Christ’s Father in heaven.

    The state prosecutes, the Church forgives. The state cannot indulge in prostitution, abortion, pornography, and sodomy and expect to prosecute child abuse.

    The state must prosecute crime. The Catholic Church must forgive sins. When the state validates vice, legalizes crime and indulges in evil, the state, constituted by the good will of free men, ceases to exist as freedom and becomes an atheocracy.

  • Michael Paterson-Seymour: from Jefferson: “This principle, that the earth belongs to the living and not to the dead, etc.” Could Jefferson be calling upon the trust in which all Church property is held for our constitutional posterity, (from the Preamble), for all future generations to come? The “IN GOD WE TRUST”. Our obligation to hand over to the coming generations the sovereignty, the unalienable rights, the founding principles, the reigns of a nations so brought to birth in freedom, that truth and Justice in law and tradition flourish, so that when citizens lay down to sleep in death, they may rest in peace. I find it particularly fascinating that both Jefferson and Adams passed into eternal life on July 4th, only four hours apart.

  • Well said Donald!

  • All I have to say is either this chap has gone off the deep end or simply wants
    publicity.

  • Many persons quote opinions of our founding fathers as law. The Declaration of Independence and our Constitution are ratified by all the states and are our law of the land no matter what is their writers’ opinion. Having been ratified by the states, the law of the land and our founding principles must be interpreted by the Supreme Court as written. The “living Constitution ” cannot be interpreted to mean anything but what it says or unless change is ratified by two-thirds of the states, it is what it is. The principle of separation of church and state is a good example of an opinion of Thomas Jefferson’s that has been abused to the point of criminality in depriving freedom, when in fact, Jefferson stated his opinion to support the First Amendment. In interpreting our founding principles, it is necessary to consider the whole of the law. Speaking to God is free speech even for the unborn. Piecemeal, reconstructed, often destroys the meaning and intent.

  • Mary de Voe

    Jefferson does raise a rather interesting point in his letter to Madison.

    If law is a command (an act of the will), how can it outlast those who will it? In other words, how can the commands of the dead be binding on the living?

    That is why Jefferson argues that all laws should have a “sunset clause” or expiry date.

    For practical reasons, he does not think the right of repeal an equivalent – See my post of 1 January at 12:08 supra.

  • Michael PS:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
    Every newly created human soul brought into existence and endowed with sovereign personhood is an “I AM”. Not one single “I AM” may be left out of “WE”. The Preamble to our U.S. Constitution states specifically the purpose of our Constitution. While the Law of the Land may vary, be amended, or change with the culture, the purpose of its being does not change or may the Preamble be removed, erased of modified. If the rights and freedoms endowed as unalienable by our Creator can be removed or modified, the people are no longer free, in the freedom created for us by our Creator. I keep using “their Creator” as does the Declaration of Independence precisely because atheists and others have removed the acknowledgement of God from our culture and from the public square.
    Our “POSTERITY” are all future generations to whom and for whom we must secure the Blessings of Liberty through our constitutional laws. Is there a right to privacy to destroy our Constitutional posterity? There is not, especially when that right to privacy removes from every male citizen the ownership of his own seed and offspring, and from the newly begotten person the freedom to defend his life from capital punishment, and from our posterity, the right to have informed consent at emancipation. Is there a right to corrupt our natural virginity, innocence and Justice? There is not, especially since Virginity, innocence and Justice are endowed unalienable virtues granted to the human person through the person’s immortal soul created by our Creator and endowed with all virtue and innocence. Is there a right to redefine the human person as having no soul for the purposes of the state? There is not, especially since the state does not create the human being’s rational, immortal soul, nor does the state endow unalienable rights to Life, Liberty and the pursuit of Happiness. These unalienable rights are endowed by our Creator, WHOM, the atheist has removed from us. The atheist has criminalized the worship of God in thought, word and deed, in belief, in speech, in press and in peaceable assembly, abandoning citizens as prey for predators, and countermanding the states’ obligation to protect and preserve our virtue… “and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

  • Michael PS:
    It cannot be otherwise. When all is said and done, it is a dead issue, not the Constitution, but the greedy evil to instill injustice and harm into the nation, by misrepresenting, and miscarrying our Justice.

The Majority Opinion that Became a Dissent

Thursday, June 28, AD 2012

If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.

Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.

Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page:

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36 Responses to The Majority Opinion that Became a Dissent

  • I wonder if Chief Justice Roberts believes that he has secured peace in our time with his decision.

  • This is a brilliant and thoughtful post and I love it. But I couldn’t help but not the double meaning at the spelling here-

    “left at the alter by the Chief Justice”

  • I meant to write NOTE the double meaning!

  • Ha! Good catch anzlyne. That was unintentional, thus I edited the post.

  • Chief Justice Roberts = Neville Chamberlain
    Barack Hussein Obama = Adolf Hitler

    Nothing could be clearer.

  • Oh, but Paul Z., “alter” is perhaps MORE correct.

    😉

  • If Roberts is such a spineless jellyfish, he should not serve on any court, anywhere.

    Honestly, I feel hatred toward the man. And yes, I recognize that that is a terrible sin, and I am praying for the hate to go away. But at the moment, it is difficult for me to feel any other emotion for the man who shoved a knife into the back of the USA today. And when I think that he is a young man and will be Chief Justice until he dies or retires, I feel utter despair for our future (and yes, I know despair is also a sin). It’s funny – I frequently feel anger toward and contempt for Obama, but I don’t hate him. I recognize that he is following his own principles, twisted though they may be. But Roberts – a man who has apparently caved because he couldn’t stand the heat? His legacy? His rightful place will be next to Justices Taney (Dred Scott) and Holmes(the government has a right to sterilize the mentally handicapped because “3 generations of imbeciles are enough.”

    But, hey, on the upside, I’m sure Roberts will get lots of invitations to chi-chi G-town parties now!

  • Pingback: Catholic Blogosphere Reaction to Supreme Court Health Care Ruling | Big Pulpit
  • On the other hand, by returning the issue to the political sphere, Roberts has put it back where it belongs. Sure, I wanted the mandate struck down so I could spike the ball and gloat…but the reality is that if the mandate had been found unconstitutional then the liberals just would have brought it back under different guises at a later date. Heck, even if struck down you have to figure Obama would continue to implement it by regulatory fiat (DREAM Act, anyone?). Upon reflection, I wish we hadn’t even brought it to the courts – the proper place for this battle is in the court of public opinion. Either we can convince a majority to repeal ObamaCare, or we can’t. If we can, then we’ve won the war – if we can’t, then striking down this particular law would do no long term good.

    Take this, my friends, as a blessing – we are not challenged to work with a will and, with our trust given to God, do what we know is the right thing.

  • Think, for a moment, just how dead gun control is – sure, some court decisions were helpful but, at the end of the day, it was an awakened American people determined to preserve their right to bear arms which made the issue politically toxic…and now the Courts follow the people on the matter. That is how not just Obama Care but all manifestations of socialism must be defeated…

  • I am reminded of the story about a bird that did not fly south for the winter. Stuck in a barnyard, nearly frozen to the ground, accepting fate that nothing was worse and it would die. A cow walked by and dropped a load of “out-put” on the hapless bird. But the dung was warm and there were undigested seeds. The bird was warmed, ate and then started to sing. That was when a barn cat came along and started to dig. Happy to be free the bird sang and stretched. And was promptly killed and consumed by the cat.

    Moral of the story, not everyone that craps on you is your enemy, not everyone that gets you out of s@#% is your friend, and if you are buried and happy, keep quiet about it.

    I do not believe that Chief Justice Roberts is our “enemy” nor do I think he is another Chamberlain. It was left to the voters to remedy the action of this Act of Congress. Otherwise from now until the end of the USA there will be the constant court battles to undo what was done by a prior administration.

    It can be done, through the ballot box and our elected Representatives, not from appointed judges that many of whom owe more allegiance to a political ideology than to justice.

  • Ah, yours is the calmer, wiser take on things, Mr. Noonan. I was so bitterly angry today and felt so betrayed….I pray you are right.

    I am a Burkean conservative, and as such, am frequently disgusted with Republicans professing to hate big government and yet voting for big government as soon as they get nice offices in DC. I hope for and fully expect Romney and a GOP Congress to strike down Obamacare. If they don’t, well, I will be done with the GOP. We will end our days as slaves to the Almighty State and there is nothing the little people like me can do about it.

    A few months ago, in confession, a priest reminded me to put not my trust in kings – or politicians, or hopped up lawyers (which is what Roberts is)….Yes, he was right.

  • BTW, it takes a full 10 minutes before I can download TAC and probably another 5 before I can access the comments section. I have showered and blown-dried my hair in the morning- and then I return to my computer and find TAC is still not downloaded. I find it the slowest site in the Christian world 🙂 It is the number one reason why I rarely comment here- does anybody else have similiar difficulties?

  • I did worry about Roberts as I’ve been reading how he doesn’t want his court to look too political but I didn’t think he would actually go this far. It was like he was reaching for something to uphold this law & he found it in taxes. I’ve lost total respect for this man. We need healthcare reform but not this one. I’m a moderate conservative but I was very angry & I’m totally disliking Roberts right now as he changed America as we see it. Obama is changing this country & I won’t even recognize it if he remains president. I’m just sad.

  • Mark, it isn’t up to the Court to decide issues based on the politics of the situation. Roberts’ attempt to play John Marshall and get the Court out of a political jam was unnecessary. What exactly would have been the fallout if the Court struck down Obamacare? President Obama and the Democrats would have complained. So what? A majority of the population would have supported the outcome, and even if a majority did not that is irrelevant. As the dissenters correctly pointed out, the Chief Justice’s attempt to the get the Court out of politics only entangled it further. In the end, the Court made law. How is that an example of the Court returning the issue back to the political sphere. With this decision the Court became part of the political sphere.

    All that being said, I agree with what others have said in terms of dialing back our emotions. We are not in Nazi Germany, and the tanks aren’t going to start rolling into our Churches. This is a terrible defeat for the rule of law, and I think also a worrying sign that we’re still two votes away from repealing Roe. But we need to take it down a notch.

  • Donna, I don’t have any problems, but you are not the only person to notice that. We’ll look into it.

  • Indeed. Additionally I view this as a Pyrrhric victory for Obama, as this decision will be a millstone around his neck during the remainder of the campaign. Too many conservatives become disheartened too easily when there is every reason to think that this decision is a Godsend politically.

  • Don, you’re ever the optimist, which I admire. Of course, I always see a half-full glass. The rosy reaction is like finding good news in a recession by reading a headline: “Mafia forced to lay off 6 judges”

  • Another thing that irks me about the rationalization of this decision, as seen in Charles Krautahammer’s column:

    Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

    This is akin to George Bush avoiding the question of the constitutionality of McCain-Feingold and letting the Courts decide. All three branches of the government have the equal authority and obligation to decide upon the constitutionality of legislation before them. It is an abrogation of duty, not a sign of political pragmatism, to simply punt the matter away.

  • I try not to be a pessimist or an optimist when it comes to politics Joe but to call ’em like I see ’em. Many conservatives were saying that the game was up when Obama got elected in 2008. 2010 demonstrated how out of touch that view was. American political history is a series of reactions and counter-reactions. Obama went too far to the Left, and he reaped a political whirlwind in 2010 and the same is in store this November.

  • I agree with Donald. The President has just been made a liar, at least on the subject of a tax increase (which was a large part of the objection to the ACA in the first place…who is going to bear the cost?). I saw an ABC News blog link this morning to the interview I which he absolutely rejected the notion that the individual mandate was a tax. Guess Mr. Constitutional Law missed that class.

    No, I think we need to give this a few days to unfold. The analyses I’ve read aside, I believe Justice Roberts may have given those who oppose the law exactly what they need to fit it… He avoided giving the President. White martyrdom on the subject, and he exposed the law for what it is: a massive tax increase on those least able to afford it.

  • TAC does load slowly – probably a side-effect of the litany of links on the side.

    Dick Morris is saying the same thing Krauthammer says, which will probably be the theme of many variations in weeks to come. The November’s gonna be a slugfest. Hopefully Holder’s out of the SecState chair so we don’t have Black Panther goon squads threatening polling places.

    Question – Supposing a GOP quash and concomitant numerical ability, what’s the chance/point/P&L for an attempted Constitutional amendment expressly forbidding Congress to tax non-activity? I would not know how to word it properly, but, could or should such a thing be considered?

  • Good article from Jonah Goldberg today. Ignore the misleading headline – he really takes Roberts to the woodshed.

    what’s the chance/point/P&L for an attempted Constitutional amendment expressly forbidding Congress to tax non-activity?

    Somewhere between slim and none. The GOP will almost certainly have legislative majorities in both Houses of Congress, but not enough to get such an amendment through.

  • “Politics and Culture from a Catholic Perspective?” I don’t think so. I am Catholic, but this blog ‘s authors and commenters certainly do not speak for me or, I suspect, for a majority of Catholics. Alhough I would have preferred a single-payer system, I agree with the purpose and intent of the ACA, and applaud the Supreme Court’s action. There will be no tax assessed against anyone if people who have enough income to pay federal income taxes do the individually and socially responsible thing and buy health insurance. The tax is imposed only on those who do not, and for whose healthcare either health providers or the rest of us end up paying.

  • Paul:

    If yesterday you were “just about 99 percent certain that John Roberts did indeed change his vote,” the following excerpts from yesterday’s dissents should make you just about 100 percent certain. Make note of the reference to “Chief Justice Roberts” in Justice Ginsburg’s dissent and “we” in the joint dissent:

    From Justice Ginsburg’s dissent:

    In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts.

    From the joint dissent:

    The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying
    the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.

    For what it’s worth, I’m 100% certain the Chief Justice switched sides at the last minute, and I’m substantially certain he did so on the misplaced belief he was preserving the integrity of the Court by protecting it against further attacks of politicizing the judicial process. By switching at the last minute, he also gave insufficient time to what became the joint dissent to dismantle his holding that “commerce clause regulation of inactivity is unconstitutional but regulation by taxation of inactivity is constitutional” or his similarly contradictory position that, on the one hand, the penalty-for-inaction “tax” is not a direct tax because it is not akin to a Capitation which is easily susceptible to apportionment or a tax on personal property or real estate, but, on the other hand, we shouldn’t be worried that the government has just now been given the power to tax inactivity because the power to tax inactivity has been around from the founding as evidenced by . . . of course, the Capitation or poll tax which applies merely for being a citizen. I imagine with a little advance notice Justice Scalia could have put a few more barbs into the joint dissent or dissented separately.

  • I am Catholic, but this blog ‘s authors and commenters certainly do not speak for me or, I suspect, for a majority of Catholics.

    While I’m sure you have your finger on the pulse of the Catholic community at large, we’ll continue to express our opinions as our Catholic faith informs us to do.

    There will be no tax assessed against anyone if people who have enough income to pay federal income taxes do the individually and socially responsible thing and buy health insurance.

    Ah, the compassionate left in action. Nobody will be punished so long as everybody does what we demand that they do in the name of social justice. There is nothing particularly “Catholic” about such an attitude, but I’m sure you will go on believing that you are more Catholic than the rest.

    Fine then.

  • Hank: Good catch, and more evidence that Roberts did indeed change his mind, and fairly late in the game at that. And I agree fully with your take. Clearly Scalia and the rest were caught off guard, as evidenced by the the relative lack of attention the dissent paid to the Chief Justice’s opinion until the very end of the dissent. I’m sure Scalia would have torn into Roberts more than he did for his double-talk on the tax had he had sufficient time – note he only addresses the government as being sophists, and not the majority of the Court.

  • Paul,

    Good points but now there are two things:

    1. Obama and the Democrats have to run with this horrendously unpopular law still the law of the land.

    2. Obama and the Democrats can’t point to the Evil, Wicked, Nasty, Republican Supreme Court as the source of blame for what went wrong.

    Obama carries the ObamaCare millstone around his neck in to November and the Courts are out of the political fray. I actually kind of like this outcome.

  • Donna,

    A great calmness came over me as I took in the decision – all is well and its all going to be for the best. And, yes, TAC does load slowly.

  • yes mark of norwich “All shall be well, and all shall be well, and all manner of thing shall be well”

  • W F Aiken

    Would you regard a levy, confined to uncultivated land, as a tax or a penalty?

  • Would you regard a levy, confined to uncultivated land, as a tax or a penalty?

    At least that levy would be attached to property ownership; not to nothing, not to non-action. I am not saying it is a good thing, but at least there might be some reason behind it.

  • I don’t think the levy you mentioned is just.

  • “I don’t think the levy you mentioned is just.”

    Nor do I, but would it be a tax or a penalty?

  • God did not want His Chosen People to be governed by a king. God wanted the Israelite nation to be a nation of sovereign persons, ruled and governed by the Supreme Sovereign Being, disciplined by LOVE. Still, Israel insisted. God relented and gave them Saul, then David.
    George Washington had served two terms as President of the United States. When Washington refused a third term as president, the people wanted to crown him king. Washington absolutely refused. George Washington was truly disciplined by LOVE, a sovereign. As a sovereign, George Washington exemplified the true meaning of sovereignty for each and every person and our nation.
    Justice is predicated on intent. As the personification of Divine Justice, the perfect Justice of God, The Supreme Court for the United States of America is empowered by Divine Justice, to root out all corruption, all falsehood, all malevolence, any evil that would threaten the Liberty and the common good of each and every individual person, every citizen, every state and nation, for whom the Justices have taken an oath to preserve FREEDOM, through the United States Constitution.
    CJ John Roberts statement that it is not the Supreme Court’s job to correct our mistakes and /or crimes is simply Roberts reneging on his oath. Swallowed by atheism and secular humanism, Roberts aids and abets the establishment of these disordered aberrations as religion through which the FREEDOM of religion might be practiced by the sovereign persons who happen to be citizens, in spite of the fact that these aberrations have been thrown off by the plaintiffs, violate the Ninth Amendment, (the Ninth Amendment states that persons have rights not enumerated in the Constitution) and deny the freedom of conscience, the human being’s immortal soul, the human being’s rational soul. Without a rational soul man becomes a beast, a rapacious beast or a subject, a member of a herd to be driven and corralled. Man has already witnessed the violence and been subjected to inhumanities un-thought of several decades ago. To this John Roberts adds his imprimatur. “It’s not my job”
    Obamacare cannot be dealt with because it is not a law. Obamacare is tyranny, coercion and fraud, the establishment of a God-less society. Obamacare will have no new generation, only a new generation of flatliners.

  • Mary De Voe

    There is an inscription in the Chapelle Expiatoire in Paris, built by the Catholic community as an act of reparation for the murder of the Royal Family “in diebus illis non erat rex in Israhel sed unusquisque quod sibi rectum videbatur hoc faciebat.” – In those days, there was no king in Israel and every man did what was right in his own eyes (Judges 17:6)

    In fact, the phrase, “there was no king in Israel” recurs four times in Judges(17:6, 18:1, 19:1 & 21:25) and each time it goes on to describe some disaster or act of wickedness.

The Lemon Test Strikes Again!

Friday, January 13, AD 2012

 

Senior Federal District Judge Ronald Lagueux, a 1986 Reagan appointee, has ordered the Cranston High School in Cranston, Rhode Island to remove a mural, pictured above, depicting a school prayer.  The mural had been in the school since 1963.  The suit, as is usual in these modern iconoclastic cases, was brought by the American Civil Liberties Union on behalf of an atheist student and her father, Mark Ahlquist.  Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.  She doesn’t think much of the Catholic Church, is indeed a fallen away Catholic, and Cranston is 90% Catholic, so this suit was her way, actually I suspect more her father’s way, to poke a stick in the eye of local Catholics.  Go here to read the opinion.  Judge Lagueux’s decision is notable for its overall reliance on the Lemon test, and I will leave to Justice Scalia below to set forth my views of that court created doctrine.

In few areas of the law has the Constitution been more twisted and deformed than in the area of First Amendment allowance of religious expression in schools.  Justice Scalia gave a useful summary in 1993 in the Lamb’s Chapel v. Moriches Union Free School District case:

As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District.

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18 Responses to The Lemon Test Strikes Again!

  • Scalia’s opinion here is one of my favorites, along with his dissent in Casey. The sarcasm just drips, but it’s well-merited. It’s hard to come up with a more asinine legal doctrine than the Lemon Test. That it survives to this day is both astounding and revolting.

  • It is a pity they did not take down the Heavenly Father two words, replaccew it with a suggestion that the viewer take a moment of silence. That would have ruled out the “Christian” Prayer distraction. It was also sad to see the pro-prayer people be so insulting and judgmental to the anti-prayer crowd but delightful to see the pro-prayer people rebuke them. The whole argument from Lemon was sad, I thought the “Supremes” had abondoned that test outright as I followed the First Amendment dicussions. The separate Church/State argument is being thrown up in Europe now a lot. There is a brewing cultural war in the UK as the PM called for more ethcs in public life recently, echoing one presumes the talks B XV1 gave on the occcasion of his State visit in 2010 . In asking for a return to same, HH repeated that call in an extremely well-crafted talk in his more recent State visit to Germany which was very well received by the Bundestag. So tragic that the simple intent of the Founders was to avoid an Established Church as Mr Jefferson had to deal with first in Virginia. Now an anti-religion former Catholic female, now a high schooler, wins a case for the ACLU to promote her anti-religion agenda iN a case that was supposedly decided to prevent a pro-faith bias by the school. The judge also spelled “mantle” as mantel, easy error to make, in my view not as egregious as his “Lemon” decision, pun intended!

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  • The establishment clause should not even apply to local schools. There is no way that one can justify the incorporation of the establishment clause using “due process” or “privileges and immunities.”

  • I thought the principle was that since the achool board and teachers were “goverment” they were “establishing” religion. It makes no sense as the Founders named the CREATOR in the Preamble and the coins have in God we Trust. That one CA Federal Court decided against the Pledge- since it has UNDER GOD in it, for grade schools, but it never went anywhere as the father did not have custody of his daughter who brought the case.

  • Actually, I wouldn’t want my Catholic children saying this “power of positive thinking” kind of prayer. We Catholics always pray “through Christ our Lord,” which this prayer does not. We Catholics pray “in the name of the Father and of the Son and of the Holy Spirit,” which this prayer does not. No disrespect intended to those of any other religion. I want my kids growing up to pray like Catholics pray. I don’t want the public school teaching them another way of praying.

  • “Actually, I wouldn’t want my Catholic children saying this “power of positive thinking” kind of prayer.”

    Then vote that way at local schoolboard elections. My problem is having Federal judges acting as “prayer police” in schools because of some sort of constitutional prohibition of prayers in public schools which simply does not exist from the text of the document. We started down this path of course largely because of the influence of Justice Hugo Black, an anti-Catholic bigot, who feared the influence of the Church.

    http://egnorance.blogspot.com/2011/10/hugo-black-and-real-history-of-wall-of.html

  • Harold,

    I agree about praying in Jesus name and in the name of the Father, Son and Holy Spirit. Nevertheless, I find nothing wrong in the petitions raised to God our Father in this prayer. I wish I had those positive thinking characteristics and practiced them consistently and always. Sadly, I fail.

  • An interesting look at the Catholic Church and the US Supreme Court by Professor James Hitchcock:

    http://catholiceducation.org/articles/politics/pg0113.html

  • Thats a very nice prayer, I wish it were hanging in my son’s school. I think I won’t comment on the father bringing this case, my blood pressure is raised enough.

  • Indeed Jasper. I have nothing but sympathy for the 16 year old girl who I doubt is mature enough to understand the issues involved.

  • When she is in front of God, as well as her father, they can point out the great work they did in getting a prayer off a school wall. Hopefully they will go on and on about how injurious it was for her to glance at it in the hall way. How she had a right not to look at it and deny all of the other children the any chance of seeing a prayer without any reference to God in it. How wishing good will among classmates is harmful and wanting to do your best and yet show grace when things don’t go your way is restricting and burdensome. Oh, how triumphant they were to have the court agree with them. Hopefully she is not showing too much glee as she walks the school hallway.

  • One presumes at age 16 “God is not finished with her yet” which is true for all of us at any age whether Catholic or atheist or agnostic. She may end up as many former abortionists do, get a profound conversion experience and become a First Aamendment lawyer and join in suits against the more expreme ACLU positions. That makes more sense to me than trying as so many of the pro-prayer people did, to question her standing before the Last Judgmen in their un-Christian defence of a prayer that was neutral and very positive, but was judged to be the establishment of a religion by mentioning Heavenly Father. As I recall, “GOD BLESS THIS HONOURABLE COURT” is a ritual at the Supreme Court itself. Wonder if a future Hugo Black will find that un-constitutional as well as the daily prayer in Congress and on and on.

  • Atheists are the only Americans that are allowed to use laws to advance their religious beliefs.

  • Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.

    I think we have an early candidate for TIME’s person of the year.

  • Any person who repudiates our founding principles set forth in The Declaration of Independence and our Constitution, repudiates his own unalienable civil rights. When one person is denied civil rights, all persons are denied civil rights. Therefore, the atheist, denying all unalienable rights endowed by our Creator, denies his own unalienable rights endowed by our CREATOR and has forfeit his legal standing in a court of law. Yes, a person is free to be an atheist, but the atheist is not free to deny any other person’s right to free expression of his response to the gift of Faith from God.

  • When an atheist says: “I AM an atheist”, the atheist uses God’s name: “I AM”, in vain and contradicts himself. Jesus said: “My Father gives testimony to me and my works give testimony to me.” two witnesses establish a judicial fact.

  • Clever try Mary de Voe but I do not think it applies. What does apply however is why and how does he or any atheist that he/she explain how anyone can say ” I am?”.Just how did I get to have “is-ness,” and from whence and is there an end to it here or later! Normal human beings in quiet moments and waking up at night and in sickness ask those questions. That is why we pray for those who have not experrienced God, they have found Him in different ways but not “seen” Him yet, that takes Faith, not intelligence and education by themselves.

Scalia on Natural Law

Wednesday, September 28, AD 2011

I think Justice Scalia is right on target regarding his comments on the difficulty inherent in judges attempting to apply natural law in this country.  Natural law, as a legal concept to be used day to day by judges in the cases before them, only works if people are in agreement on basic morality.  Then a law writ by God on the hearts and minds of men and true for all times and true for all places is possible of discernment in application to particular cases.  Such a civilization Western Europe enjoyed from around 1000 AD to the time of the Reformation.  Our time bears little relationship to that period in history.  Now we live in a time of moral chaos, where even the right to life of an unborn child is denied by law.  In such a time of moral collapse, giving to judges the power to make determinations based on natural law is simply giving them the power to make it up as they go along, even more than they not infrequently do currently.  Bad enough results obtain when judges are supposedly bound by the text of written constitutions.  Give them a warrant to use something as vague and amorphous as natural law, and the results are completely predictable.

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15 Responses to Scalia on Natural Law

  • Nothing real to add here. Just saying, Scalia rocks in dissent. Just saying.

  • Scalia’s positivist dissent is only admirable when it affirms or allows us to affirm what we know to be true in the natural law. Standing alone, his naked positivism would be scary in other hands.

  • Standing alone, his naked positivism would be scary in other hands.

    I disagree that is naked positivism. It would be erroneous thinking to say the positive law is the law therefore it just. However, that is not Scalia’s position. Justice demands that laws not be arbitrary. This is where well crafted positive law in support of natural is important. If those two things are in place, then it is just to adhere to the positive law. The positive law includes many safeguards and defines the rules of evidence, etc. There are appeal processes defined, and even a process of last recourse (appeal to the Executive). If that fails it makes no sense to take it to an authority has no or defined jurisdiction over the matter. The Supreme Court has no more authority over the matter than the local dog catcher. It would be an injustice for them to act otherwise and for others to act on their decision.

    What if the Supreme Court had overstepped their bounds in the name of justice and decided on the guilt or innocence of Davis? And what if after weighing the evidence they decided he was guilty? Where would Davis go to proclaim his actual innocence and seek relief? What if when OJ Simpson was aquitted Marcia Clark petitioned the Supreme Court to convict OJ based on acual guilt? Should they have heard the case and passed sentence even though one could easily argue it was in the name of true justice?

    Adhering to the just positive laws is just even knowing that man is fallen and “actual” justice may at times be elusive.

  • The problem is not that the natural law is vague and amorphous, it is only for liberals. Natural Law has been adequately expounded in Judeo-Christian societies for milennia, and is easily discernible.

    No, the problem really is that in our system of governance we do not invest judges with the duty of discerning, applying, or expounding upon the natural law. A legislature might properly do that.

    As I’ve explained here: pers-sw3ee-2621270853@craigslist.org, in our system, a judge, and particularly a Supreme Court Justice, is tasked with the straight forward and simple matter of applying the text of the Constitution as understood by it’s framers to the cases before the Court. Going beyond that mandate to engage in the business of discerning and applying the natural law is simply going beyond the competence and role of the judiciary in our system.

    Scalia cannot be faulted for declining to exercize a power which he has not been granted, is foreign to his role as a Justice, and is alien to the American system of separation of powers.

  • “The problem is not that the natural law is vague and amorphous, it is only for liberals. Natural Law has been adequately expounded in Judeo-Christian societies for milennia, and is easily discernible.”

    I would heartily disagree with you on that Tom unless we are talking about fairly straight forward issues such as murder. Even then there would be a debate about degrees of culpability. Once natural law attempts to deal with items like medical malpractice, product liability, mechanic’s liens, etc, I think attempting to get a consensus from a natural law analysis would be an endless exercise in unending debate.

  • “Scalia’s positivist dissent is only admirable when it affirms or allows us to affirm what we know to be true in the natural law.”

    What is admirable about Scalia’s dissents is that he understands the distinction between a court and a legislature, and he does not confuse his policy preferences as being Holy Writ, a very good thing for judges to understand in a democracy.

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  • Yes, Robert Bork should have been confirmed and seated on the Supreme Court.

  • Citing the musings of this so called Catholic sets evangelization back 100 years and greases the skid for Islam and its worldwide vision of evangelization. His opinions serve to maintain the jack boot of the corporatist welfare queens on the throat of the common man which of course is welcome news by the John Bircher racists and tea baggers within the American Catholic community. A man enslaved by the spirits of pride, gluttony and avarice is not worthy of Catholic accolades much less affiliation.

  • Well, David, at least Scalia’s writings are intelligent and reasoned. He could just pen unintelligible rants.

  • Couldn’t the Illuminati have figured in that explanation somewhere?

  • Thanks for stopping by David as a dollop of spittle flecked commentary always helps to enliven the comboxes now and then. We will not keep you as I am certain you have many other venues to shine the light of TRUTH upon. Since I am a paid agent of the John Birch and Tea Bagger Alliance, I hereby ban you from this blog. If the Trilateralists reverse my banning, I will let you know.

  • Those who engage in judicial activism demonstrate the truthfulness of the epigram; “The obscure we see eventually; the completely obvious takes a little longer.” Judge Scalia is the exception to the second part of that saying.

The Right to Kill Your Kid

Tuesday, May 10, AD 2011

Right you are Klavan on the Culture!  Abortion is a perfect example of the tranformation of a fairly low level debate state by state into a national issue that haunts the nation year after year.  As the Supreme Court succeeded so well in resolving the slavery question by the Dred Scott decision, so it has succeeded in resolving the abortion issue by the Roe v. Wade decsion.  Of course that is if “resolve” means “transform an issue into a nation wide fierce controversy that will never go away until it is resolved through other means than the courts”.

Justice Scalia put it well in his dissent in Planned Parenthood v. Casey (1992):

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4 Responses to The Right to Kill Your Kid

  • And that is what liberalism is all about – you’re liberated to do whatever you want without consequence and thus you enslave yourself to the whims of the State. In rejecting God and His Law, the liberal replaces Him with the nanny State that bequeaths on man the “right” to murder our offspring. This is the essence of the liberal mantra for global population control and enviro-wackism. But until abortion is stopped, no liberal scheme for peace and prosperity will work.

    The children of Israel and Judah sacrificed their children to Baal, Asteroth, Molech, and the other Canaanite gods. Today in Obama’s “Amerika” is no different. Nor will God’s response be any different. He is the same yesterday, today and forever.

  • A profound metaphor of the liberal “movement” was presented in “Slumdog Millionaire” where Salim’s brother would bring to adult gangsters (liberals, you liberals!) little boys whom they blinded to increase the “take” of rupees they could beg.

    Liberals’ unworkable, destructive solutions to exaggerated or fabricated crises create greater misery and more (in addition to 45,000,000 killed in abortions) misery and dependent, desperate poor people.

    Let’s go to the record . . . One-in-seven need food stamps; 18% (real) unemployment; unaffordable food/fuel prices; millions of foreclosures; dpressed housing prices; national bankruptcy; etc.

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  • Funny how in the same nearly 40 years we have had an increase in pornography (its mainstream now), sexual assault, child trafficking, recreational drug use, the enslavement of women (assuming you think man is most free in his or her own home and not in the workforce) and all sorts of other ills.

    Could it be that someone has an agenda to separate us from our Maker and make us into slaves? Well at least we have a post-racist, post-partisan president who can save the world (assuming you exclude being safe in your own mother’s womb of course), right?

Midterm Election Results Show The Tide Continues To Turn Toward Catholic Orthodoxy

Wednesday, November 3, AD 2010

While most political pundits mull over the stunning defeat the Democrats suffered in the 2010 midterm election (some 60 seats in the House and at least seven in the Senate,) most pundits, including Catholic pundits will not have noticed a striking phenomena.  Though practicing Catholics easily went for McCain-Palin in 2008, the entire Catholic vote went for the Obama-Biden ticket somewhere between five to eight percent. Yet, in 2010 we are told that Catholics voted over 60+% against candidates who supported the Obama agenda. I have yet to see a statistic for practicing Catholics, but we can assume it is much higher than 60%. This turnaround is unprecedented in the history of political polling. Though, I do believe the majority of this is the result of economics, we are seeing a fundamental shift among Catholics. Some Catholics have abandoned the Church (and their conscience) to secularism and to entertainment based mega churches, but many Catholics now see the wisdom of Catholic orthodoxy. After the momentous mid-term election results, what a relief it is to see an open practicing Catholic as the new Speaker of the House (John Boehner,) compared to the outgoing Speaker (Nancy Pelosi) who openly defied the Teachings of the Church and her archbishop.

However, the good news doesn’t just end with the incoming new speaker. There were some great Catholic victories and I will highlight two of them. Those Catholics who aren’t ashamed about the 2,000 year old teachings of the Church were rewarded with unabashedly Catholic politicians like Senator elect Pat Toomey in Pennsylvania and Congressman elect Sean Duffy in Wisconsin, both reliable blue states. Toomey has been a trooper for pro-life causes while Duffy and his wife Rachel Campos Duffy have been big advocates for traditional parenting. They have a growing family and have not been ashamed of standing out in a world that is often hostile to traditional religion. Both were MTV Real World partipants and Rachel was the last one cut from being on the View. One can only imagine her going toe to toe with the likes of Whoopi Goldberg and Joy Behar (probably why she wasn’t picked.)

After the liberal perfect storm victory of 2008, I found myself on the receiving end of those who said Catholic orthodoxy, and or the conservative Catholic lifestyle was going the way of the horse and buggy. However, the hangover of liberal Big Government and the moral decay that goes along with those who think every lifestyle, feeling, whim, or urge needs to be embraced has aided many Catholics to see the wisdom of the two thousand year old teachings of the Catholic Church. In addition, I am sure hearing the latest rants of Keith Olbermann and Rachel Maddow, along with reading the latest screeds against Catholic orthodoxy from the likes of Catholics like outgoing Speaker Nancy Pelosi and columnists Maureen Dowd and E J Dionne has helped many see the light.

The plummeting poll numbers of liberals coupled with a few announcements from the Holy See must have made for an eternity for the left, primarily the Catholic left. In those days leading up to election day, Pope Benedict XVI gave an address on the plight of migrants and illegal aliens. The Holy Father spoke of the compassion one must have for those on the run, but he clearly stated that nations have the right to defend their borders and accept the integrity of their nation state. This was certainly a blow to those on the Catholic left, including some clergy and even a few prelates who seemed to favor unlimited immigration.

The finishing blow for the Catholic Left occurred when it was announced that Archbishop Raymond Burke formerly of St Louis and now head of the Vatican Court was going to be made a Cardinal. If that wasn’t bad enough, Cardinal Elect Burke made one of his patented unflinching addresses on the grave sin of those Catholics who vote for politicians that support abortion and same sex marriage. It was also announced that Archbishop Donald Wuerl of Washington DC was also to be named a Cardinal. Though friends with Cardinal Elect Burke, the two have sparred over whether Catholic politicians should be banned from receiving Holy Communion, something Cardinal Elect Wuerl is against. Cardinal Elect Burke has stated that the arguments used by his brother Cardinal Elect Wuerl and others, that state banning pro abortion politicians from receiving the Eucharist would politicize the sacrament and there is still much teaching to be done on the subject, are “nonsense.”  

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28 Responses to Midterm Election Results Show The Tide Continues To Turn Toward Catholic Orthodoxy

  • Yes, because nothing is so close to our Holy Mother Church as the platform of the Republican party in America.

  • Glad you finally recognize that. 😉

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  • I wouldn’t conflate electoral trends with trends in the Church more generally, still less (shudder) the Republican Party. Did the 2008 elections show the tide was turning away from Catholicism?

  • Do you have an example of Cdl-Des. Wuerl’s past chiming in about considering the greater good and one’s conscience?

  • John Henry, every political wave has an impact on religion and vice versa. I am sure I am not the only one who has heard anecdotal evidence of some saying after 2008 that they didn’t need religion and or specifically the Catholic Church. This is not unusual. For example, not everyone who went out to San Francisco during the Summer of Love in 1967 was a budding liberal. Some were conservative kids who went on a moral bender (so to speak) and came home and once again embraced the truths they were taught growing up.

    However, what I believe to be of greater significance are those liberals who thought after the Election of 2008, that they truly were the “ones we have been waiting for” (remember that speech?) However, world peace and economic nirvana didn’t come to fruition, actually far from it. Because of it, some realized what Big Government could never do and resumed their quest for the truth. In those quests, a 2,000 year old institution (the Church) becomes an interesting option. Now I am not asserting that it is anything but a tide. I hope some day to talk about a tsunami. However, a tide sure beats stagnant water.

  • There are very few Catholic Bishops and Prelates that support unlimited immigration. Theere are many that support comprensive immigration reform

    Conservative Catholic job will also include pointing out the extreme no amnesty crowd that there is a differnce especilly in this COngress

  • Dave:

    I’ve read those links. In fact, I double checked them before posting my question to you.

    Neither of them quote Cdl-Des. Wuerl talking about considering the greater good and one’s conscience.

    Do you have an example where he does what you say he “usually” does?

  • Tom K, in the interest of clarity I have reworded the paragraph to state that both men have a disagreement over denying Holy Communion to pro abortion politicians. Cardinal Wuerl doesn’t agree with it, while Cardinal Elect Burke says there is no other choice.

  • It’s helpful to remember that being a Cardinal or being a Pope makes one neither prudent nor wise.

    I have come to believe that there are two Magisteriums: that of the bishops, and that of the saints. While the bishops generally do a very good job articulating the dogmas of faith, they generally do a poor job of living those dogmas out. They generally an even worse job of articulating the prudential application of those dogmas. In other words, they can tell you that the Golden Rule is right, but they generally don’t live it, and hence, they usually don’t know how to explain it.

    The saints, however, live the truth in love. Their living Magisterium teaches us what all those encyclicals and councils mean. I speak, of course, not simply of the saints officially recognized by the bishops, but of all the saints.

    When it comes to Cardinal-to-be Burke, then, I remember the words of Christ: “do and observe all things whatsoever they tell you, but do not follow their example. For they preach but they do not practice.”

  • Dave:

    Capital!

    I remain fascinated by this statement: “It appears Pope Benedict XVI’s elevation of Cardinal Burke to such a senior position in the Vatican caused the establishmentarian spiritual leader of the nation’s capital (as well as its various legislative bodies) to hold his tongue.”

    Cdl-Des Burke, of course, held his current position in the Vatican when Cdl-Des Wuerl gave the interview in the link you suggested to me, and as you indicate they will both be made cardinals at the same time. To me, that makes it appear that Pope Benedict’s elevation of Cdl-Des Burke is demonstrably not the reason Cdl-Des Wuerl held back a comment on Cdl-Des Burke’s statement. But then it’s not even apparent to me that he had a comment to hold back.

  • Dowd is Catholic? Really?

  • Yes! Cardinal Burke and I seem to agree. You probably will not be getting into Heaven if you vote dem.

    Nate: OUCH. I know you have good intent. The real Church counsels charity and truth in all things.

    Teachable Moment: Calumny is defined by the American Heritage Dictionary (1992) as a “false statement maliciously made to injure another’s reputation.” The Catechism of the Catholic Church (1994) places calumny as a serious sin under the Eighth Commandment, “Thou shall not bear false witness against your neihbor.” The Catechism states, “He becomes guilty of calumny who, by remarks contrary to the truth, harms the reputation of others and gives occasion for false judgments concerning them” (2447). The Catechism notes that calumny offends “against the virtues of justice and charity” (2479).

    Please don’t emulate them vile, kool-aid drinking marxists.

  • Maureen Dowd’s uncle was Tommy (“the Cork”) Corcoran. He paid her way when she was an undergrad at Catholic University.

  • Dave is very clear that the connection between the Faith and yesterday’s voting pattern is based on the tendency of many individual Republicans at this time to believe in the holiness of life and the dignity of the individual. I understand that several generations ago those who identified themselves as Republicans were less protective of the unborn than those who then identified themselves as Democrats. The stability and the consistency are in the Faith, not in shifting party labels.

  • “Cardinal Burke and I seem to agree. You probably will not be getting into Heaven if you vote dem.”

    Well, in that case I’m doomed because I did actually vote for ONE Democrat this time… a candidate for a local office. I did so because the incumbent Republican has demonstrated what I consider to be egregious mismangement of his department to the point of threatening public safety (too long to explain here) and I felt he needed to go. (Didn’t do any good; he won anyway).

    At the local level sometimes you get people who run as Democrats, Independents, or Greens or Libertarians simply in order to provide opposition to the incumbent and not out of any affinity toward the Democratic party platform. Plus, their jobs cannot impact abortion, same-sex marriage or any of the non-negotiable Catholic issues anyway.

  • Yes Mack, I specifically avoided using party labels for the very reasons you chronicled. There was a time (in the early 1970s) when there were probably more pro-abortion Rockefeller Republicans than pro-abortion Democrats in the South & Midwest.

    The article was about the faithful removing their faith in Big Government liberalism and putting it back into the core teachings of the Church.

    There was a time (decades and centuries ago) when the faithful and not so faithful came to the Church for aid, and not the government. Sadly for some today, Big Government is their belief system.

  • T Shaw, really??? I don’t vote, but I am really tired of hearing people damn others for voting Democratic.

    Give me a break. You really think people deserve an eternity of torture for supporting political candidates you don’t like? First, at an individual level voting does not change political outcomes. So, who you vote for is only of symbolic importance, making the notion that one’s electoral preferences constitute grave matter suspect. Second, people might sincerely believe in alternatives to criminalization as a means to combat abortion. Those arguments may or may not stand up to scrutiny, but being incorrect doesn’t mean a person deserves hell. Finally, who qualified you to decide who is probably not getting into heaven?

  • “I noted that even though the Diocese of Rochester had more Catholics than the dioceses of Lincoln and Omaha combined, Rochester had 6 men studying for the priesthood while Lincoln and Omaha had 64.”

    This is the ‘proof’ in EVERYTHING you write…

  • I can’t really agree that voting Democrat ipso facto is a sin, etc. There are some decent local Democrats who are good candidates. It is the individual candidate’s qualifications/position on issues that need to be judged. Particularly in the South, there are a lot of pro-life Democrats.

  • T. Shaw, I should clarify that it is not simply the bishops who generally fail to follow Christ, but all of us who are not yet holy. It isn’t, I think, an act of calumny to remind ourselves that we are indeed sinners, even our bishops and popes.

    Now, a bishop or pope who is not only an authoritative teacher, but a holy teacher, is a rare and precious gift from God! John Paul the Great comes to mind.

  • I think the Supreme Court has 5 Catholics, but wouldn’t count on them as a solid block when it comes to voting. As encouraging as GOP gains in legislative races has been, social issues are generally decided by the Supremes and the addition of Sotomayor and Kagan, along with their Lib colleagues, makes any reversal of abortion policy highly dubious.

  • Yes Mark DeFrancisis, I will continue to regularly mention those statistics which highlight the demise of once proud places like Rochester, where leadership has simply given short shrift to orthodoxy. In addition, I will continue to highlight places where vocations are growing like Lincoln and Denver. There are blogs dedicated to the subject in places like Rochester where vocations are sparse. I would hope as a Catholic you would want to know why places like Denver and Lincoln are thriving, while the reverse is happening in locations like Rochester. Wouldn’t you want to know why Lincoln and Omaha combined had nearly 10x the vocations as did Rochester, even though Rochester is bigger than both Lincoln and Omaha combined? In locations such as Lincoln and Denver the Church’s teachings are embraced and dissidents are not welcomed. In addition in places like Denver and Lincoln, Marian Devotions and Eucharistic Adoration are widely practiced.

  • I wonder, Mr. Hartline, if the link between vocations and orthodoxy isn’t rather a link between vocations and traditionalism?

    Orthodoxy and traditionalism aren’t always the same thing. The Amish are quite traditional, and have been growing well for quite some time. They have a strong sense of identity rooted in a counter-cultural lifestyle. But obviously they aren’t orthodox.

    I’ve noticed that vocations do blossom where traditional practices are practiced, where young Catholics can feel part of a strong counter-cultural social body. But traditional practices do not always translate into orthodoxy.

    Orthodoxy, and orthopraxis, are right belief and right action. Many traditional doctrines have undergone development within the Church–especially (and most importantly) the social doctrines. I have noticed that many of the younger priests are very pro-life (thank God!), but do not seem to understand that peace and justice constitute (in the words of the Church) an integral and essential aspect of evangelization–of the Gospel. Many do not even seem to understand what justice is.

    The danger, then, is that in promoting traditional practices and thoughts, though we may gain many vocations, but we may also end up with many priests who are deaf to the ‘Church in the Modern World’.

    My best, Nate.

  • Francisco,

    Take a nap. That comment is hyperbole and a wild-eyed generalization. I do not dislike dem candidates. I hate innumerable evils they impose on America.

    Nate, You wrote up bishops. If you wrote thusly about me, it would be appropriate.

    Mark D: How’z it been, you Obamacatholic?. Are you okay after Tuesday nite?

    I was about to commit detraction. I am likely the vilest person any of you ever imagined.

  • Nate, on the surface your point seems to have much merit. However when you dig deeper, you can see that it really doesn’t hold water. For example, the Amish completely ignore the modern world, and while they seem to be growing, they are not. There is much consternation over some young Amish leaving the fold and living outside the community during the day (working and partying), only to come back late at night. I have even heard there is a theological battle over cell phones, since many believe that because they use battery power they aren’t techincally electrical-modern devices.

    As for Catholicism, I have spoken to a number of seminary rectors and they point out an interesting finding. Often, the young men coming their way are those young men from smaller cities outside the wealthy urban and suburban areas. These young men are often well adjusted and quite liked and successful. They come to understand their vocation, sometimes in college and sometimes in their late 20s. They fit in well with the world around them and often have successful jobs, many friends and a girlfriend. However, they come to find that they have the greatest love for the Church and feel she is the only hope in a world that has embraced pleasure and possessions at a break neck level.

    In addition, they feel truth has become hostage to what Pope Benedict XVI calls, “The Dictatorship of Relativism.” Incidentally, the same dynamic holds for young woman who are embracing a more traditional view of the religious life, complete with embracing the habit and or veil. I am not saying every seminarian is going to make a stellar priest, but the days are long gone when the seminary would take some young man who didn’t fit in and hoped he could as a priest. As one rector told me, the results of that practice were disastrous. The rectors, who have been rectors for quite some time, have told me that they can’t remember a time when they have seen such a period where class after class has such stellar seminarians. Nate, I hope this explanation helps. Take care!

  • Unfortunately the tsunami, or should I say Tea-nami, failed to make a dent in the liberal stronghold that is my home state of California. Saints preserve us from those who got this state in the mess we’re in and those who had the audacity to keep them in office.