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Posts Tagged ‘Antonin Scalia

Scalia on Law, Words and their Application

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In an interview with Jennifer Senior, Antonin Scalia valiantly dispatched a straw man. A lot of people have noted this, but I wanted to quote it, and suggest that much of the criticism, while correct, misses the main problem.

Had you already arrived at originalism as a philosophy?

I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

[snip]

What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.

So first off, what Scalia is saying here is factually–incontrovertibly– incorrect. Words do change in their meaning.  Some have taken this as evidence that Scalia doesn’t know what he’s talking about. And I suppose that’s possible.  But it’s also possible that Scalia takes this position because it helps him advance his legal agenda. That is, it helps him justify the substantive positions he takes, the role for the Court he prefers, and so on. By making this about ignorance, we are missing the politics, which makes it difficult to push back effectively.  ‘Originalism is wrong’ is a fine thing to say, but what originalism is doing and how it is doing it are far more important thing to think about.

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Written by David Kaib

October 11, 2013 at 1:13 pm

Scalia and Racial Entitlement (Part II) – 1979

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220px-Antonin_Scalia,_SCOTUS_photo_portraitLots of attention has come to Justice Scalia’s claim about the Voting Rights Act being about ‘racial entitlement.’  [Update – including from me.] The full quote is even more bizarre.  Here’s a taste:

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. [my emphasis] Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It’s the “it’s been written about” part that jumped out at me on second look. So I did some digging, and learned it’s true. It has been written about – by Scalia himself, in an article decrying affirmative action, 15 years after the passage of the Civil Rights Act. Read the rest of this entry »

Written by David Kaib

February 28, 2013 at 12:08 am

Justice Scalia, Voting Rights, and Racial Entitlement

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Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

[updated below]

The Supreme Court, according to many, seems poised to strike down Section 5 of the Voting Rights Act, which would make it far easier for states and localities to engage in all manner of disenfranchisement knowing full well that it will take forever for a federal court to rule against them via the normal litigation process.  Creativity in such things is not a rare quality.

This should have been settled a long time ago.  As Justice Frankfurter said:

The reach of the Fifteenth Amendment against contrivances by a state to thwart equality in the enjoyment of the right to vote by citizens of the United States regardless of race or color, has been amply expounded by prior decisions. Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A.1916A, 1124; Myers v. Anderson, 238 U.S. 368 , 35 S.Ct. 932. The Amendment nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.

Ironically, the Court (via Chief Justice Warren) used Selma, Alabama to illustrate the necessity of Section 5: Read the rest of this entry »

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