← Autodidact Archive · Original Dissent · Walter Yannis
Thread ID: 17431 | Posts: 13 | Started: 2005-03-21
2005-03-21 08:14 | User Profile
[URL=http://www.nytimes.com/2005/03/21/opinion/21mon3.html?th]New York Times[/URL] That Scalia Charm March 21, 2005
Some court-watchers say Justice Antonin Scalia is on a "charm offensive" to become the next chief justice. Then he must have been taking the day off when he gave a speech last week and lashed out at the Supreme Court's recent ruling striking down the death penalty for juveniles, and at the idea of a "living Constitution." There is nothing charming about his view that judges have no business considering the constitutionality of aspects of the death penalty, or that the Constitution should be frozen in time.
Justice Scalia dissented bitterly in this month's juvenile death penalty case. Reasonable minds may ask, as he did, whether the majority opinion relied too heavily on the norms of international law in deciding what punishment does not meet modern standards of decency. But Justice Scalia disagreed not merely with the majority's conclusion that offenders cannot be executed for crimes committed when they were under the age of 18, but with the very fact that the court was even considering the question. "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?" he asked.
In his speech last week at the Woodrow Wilson Center, he continued on the same theme. He attacked the idea of a "living Constitution," one that evolves with modern sensibilities, which the Supreme Court has long recognized in its jurisprudence, and of "evolving notions of decency," a standard the court uses to interpret the Eighth Amendment prohibition on "cruel and unusual punishments" in cases like those involving the death penalty.
In drafting the Constitution, and particularly the Bill of Rights, the Founders chose to use broad phrases that necessarily require interpretation. Since its landmark 1803 ruling in Marbury v. Madison, the court has held that it is the final word on the Constitution's meaning. In the recent juvenile death penalty case, the court was doing its job of determining what one such phrase, "cruel and unusual punishment," means today.
The implications of Justice Scalia's remarks are sweeping. Many of the most central principles of American constitutional law - from the right to a court-appointed lawyer to the right to buy contraception - have emerged from the court's evolving sense of the meaning of constitutional clauses. Justice Scalia seems to be suggesting that many, or perhaps all, of these rights should exist only at the whim of legislatures.
Justice Scalia may believe that by repeating his radical views enough times, the nation will grow accustomed to them. But his approach would mean throwing out much of the nation's existing constitutional law, and depriving Americans of basic rights. Justice Scalia's campaign to be the next chief justice, if it is that, is a timely reminder of why he would be a disastrous choice for the job.
2005-03-21 12:22 | User Profile
"Dissenting from Tuesday's U.S. Supreme Court ruling on the execution of juveniles, Justice Antonin Scalia ridicules his colleagues for switching sides on the basis of "evolving standards." He calls the majority opinion a "mockery" for supposing that the Constitution's meaning "has changed over the past 15 years." It's an unfortunate complaint, because the justice most flagrantly guilty of changing his position on the moral responsibility of juveniles in the last 15 years is Antonin Scalia.
In the current case, Roper v. Simmons, Scalia goes after his favorite target, Justice Sandra Day O'Connor. Never mind that she's on his side. "She is nonetheless prepared (like the majority) to override the judgment of America's legislatures if it contradicts her own assessment of moral proportionality," he writes in a footnote. "The votes in today's case demonstrate that the offending of selected lawyers' moral sentiments is not a predictable basis for law."
Next, Scalia targets the author of Tuesday's majority opinion, Justice Anthony Kennedy. Scalia accuses the majority of "picking and choosing" studies to support its "unsubstantiated generalization" that juveniles are too immature to be held fully accountable for murder. "At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions," Scalia writes. "Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes." Therefore, he concludes, they don't support Kennedy's "categorical prohibition of the death penalty for murderers under 18."
Abortion figures heavily in Scalia's critique. He tweaks liberals who think minors are mature enough to make abortion decisions but not mature enough to deserve execution.
As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U. S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. ... The APA brief, citing psychology treatises and studies too numerous to list here, asserted: "[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems."
Scalia then skewers his colleagues for the same flip-flop:
In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. ... It is hard to see why this context should be any different.
It's a clever point. But let's go back to the 15-year-old abortion case Scalia cited. In Hodgson, the court upheld a Minnesota law that required notification of both parents before performing an abortion on a girl less than 18 years old. However, the court also required Minnesota to offer girls the option of explaining to a judge why they should be allowed to make the decision on their own. O'Connor insisted on the judicial bypass as a means of "tailoring" parental involvement laws "to avoid unduly burdening the minor's limited right to obtain an abortion." She cited a 1976 case in which the court struck down a parental involvement law that didn't allow the option of "judicial determination that the minor is mature enough to give an informed consent without parental concurrence."
O'Connor's position, in other words, was that age was too rigid a criterion. And what's her position in the death-penalty context? The same. She opposes a "categorical prohibition" of death sentences for minors, since the evidence merely shows "differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development."
Kennedy takes the other side. "All juvenile offenders under 18" should be exempt from execution due to "lack of maturity and an underdeveloped sense of responsibility," he writes. While conceding that "some under 18 have already attained a level of maturity some adults will never reach," he insists that "a line must be drawn. ... The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest."
His position, in short, is that age is an adequate criterion. And what was his position in the abortion context? The same. In Hodgson, he rejected O'Connor's insistence on a judicial bypass option. "Legislatures historically have acted on the basis of the qualitative differences in maturity between children and adults," he wrote. "Age is a rough but fair approximation of maturity and judgment."
Scalia derided his colleagues in Hodgson just as he derides them now. "One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass," he wrote, citing O'Connor. "Four Justices would hold that two-parent notification is constitutional with or without bypass," he added, citing Kennedy. These and other disputes among the justices, he concluded, were "the random and unpredictable results of our consequently unchanneled individual views."
But there's nothing random or unpredictable in Kennedy's or O'Connor's views on the competence of minors in the two cases. They've held firm. The only justices who have "changed over the past 15 years" are the one who switched from O'Connor's side to Kennedy's—Justice John Paul Stevens—and the two who switched from Kennedy's side to O'Connor's: Chief Justice William Rehnquist and, you guessed it, Scalia. At least Rehnquist and Stevens have the sense to keep quiet about it. Not Scalia. He's too busy poking fun at the APA's flip-flop to notice that by taking the opposite side in both cases, he's flop-flipped.
When Scalia writes that "we have struck down abortion statutes that do not allow" judicial bypass, and that in so doing "we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations," what "we" is he thinking of? It can't include him. He had a chance in Hodgson to affirm that some minors were mature enough to make moral decisions. He voted no. And as the evolved Scalia observes 15 years later, it's hard to see why this context should be any different."
[url]http://slate.msn.com/id/2114219/[/url]
2005-03-21 13:23 | User Profile
Whatever his faults, Scalia is right when he says that the Constitution is not a "living document." To claim that the meaning of a document can change with time and subjective interpretation is tantamount to claiming that it has no objective meaning at all. And if the Constitution has no objective meaning, but is merely a mirror for reflecting and legitimizing the whims of whomever is currently in power, then why have a Constitution at all?
The United States was founded on certain principles. Once those principles are abandoned -- and, for the most part, that has already happened -- the United States ceases to exist except as the hollow name of a geographical area and the population that resides within it.
There is nothing wrong with changing certain parts of the Constitution, of course. Provisions for doing so were made by its authors. But certain fundamental principles -- particularly those named in the Bill of Rights -- are not open to change.
2005-03-21 13:40 | User Profile
Scalia has no faults. :tongue:
2005-03-21 15:46 | User Profile
Bush is too much of a worthless sack of crap to appoint a great man like Scalia as Chief Justice. Clarence Thomas, despite his obvious racial disadvantages, will make for an adequate substitute, however.
2005-03-21 16:24 | User Profile
[QUOTE=Walter Yannis]In the recent juvenile death penalty case, the court was doing its job of determining what one such phrase, "cruel and unusual punishment," means today.[/QUOTE] Why does it mean something different today than it did yesterday? Or twenty years ago? Or two hundred years ago? If we say that it means something different today, isn't that really the same as simply saying that we want it to mean something different than it has always meant? And if its meaning is based upon wants, then that meaning is totally subjective, and therefore arbitrary. And, as Angler pointed out, a constitution whose meaning is arbitrary is worthless.
2005-03-21 16:44 | User Profile
[QUOTE]Whatever his faults, Scalia is right when he says that the Constitution is not a "living document." To claim that the meaning of a document can change with time and subjective interpretation is tantamount to claiming that it has no objective meaning at all. And if the Constitution has no objective meaning, but is merely a mirror for reflecting and legitimizing the whims of whomever is currently in power, then why have a Constitution at all?[/QUOTE] Well said.
And, of course, the notion is preposterous for the further reason that the proponents of the "living document" notion don't purport to apply the living document notion to written contracts or other such documents.
2005-03-21 16:54 | User Profile
[QUOTE=Angler]Whatever his faults, Scalia is right when he says that the Constitution is not a "living document." [/QUOTE] Does that mean he doesn't believe in "Sola Scriptura"? :D
2005-03-21 17:53 | User Profile
[QUOTE=mwdallas]Well said.
And, of course, the notion is preposterous for the further reason that the proponents of the "living document" notion don't purport to apply the living document notion to written contracts or other such documents.[/QUOTE]I have long felt that American infatuation with laws has been a great failing. When men stand and cry that we are a nation of laws, I instinctively shudder. We are a nation of men who make laws.
The men who founded this country did not come from the Middle East, China, Japan, Asia, Africa or the holy city of Jerusalem. Nor did they get their ideals from Germany, France, Italy or the rest of the European continent. They were of English gentry stock who understood what they were doing would be impossible to duplicate in other parts of the world.
The primacy of the courts in administering our country has been a source of many American problems. If the legislature were to be the supreme source of law and power, the country would be better for it. Legislators sensing what the electorate desires would be far more responsive to popular senses of what right or wrong is. The courts are not.
2005-03-22 18:05 | User Profile
The courts are not.
They might be, if tarring and feathering came back into vogue. :thumbsup:
2005-03-23 03:03 | User Profile
[QUOTE]The United States was founded on certain principles. Once those principles are abandoned -- and, for the most part, that has already happened -- the United States ceases to exist except as the hollow name of a geographical area and the population that resides within it.[/QUOTE]
Angler, We can not point this out often enough!
[QUOTE]The men who founded this country did not come from the Middle East, China, Japan, Asia, Africa or the holy city of Jerusalem. Nor did they get their ideals from Germany, France, Italy or the rest of the European continent. They were of English gentry stock who understood what they were doing would be impossible to duplicate in other parts of the world.[/QUOTE]
Edward, You can bet your last sheckel that our founders had a good understanding of the leasons contained in the fight to establish the Magna Carta.
2005-03-23 04:03 | User Profile
[QUOTE=Quantrill]Why does it mean something different today than it did yesterday? Or twenty years ago? Or two hundred years ago? If we say that it means something different today, isn't that really the same as simply saying that we want it to mean something different than it has always meant? And if its meaning is based upon wants, then that meaning is totally subjective, and therefore arbitrary. And, as Angler pointed out, a constitution whose meaning is arbitrary is worthless.[/QUOTE]
Cruelty is arguably a somewhat subjective notion that might become sincerely defined differently as time passes, and "unusual" is certainly a subjective term; back when I was born, in 1970, microcomputers were unusual. They aren't unusual now.
Needless to say, in virtually all other respects, the doctrine of "the living Constitution" is near-treasonous.
2005-03-23 04:30 | User Profile
Mad Science Type,
Check out this website: [url]http://www.jail4judges.org/[/url]
And the links under my signature that explain jury nullification.