Scalia on Peter Robinson's "Uncommon Knowledge"

[Tex]

Originally Posted by Cali Coug

In other words, you want the Constitution to mean what you think it means, as determined by your standard of "originalism," which effectively means identifying anything in the early history of the nation which may be construed as supporting a position you have already adopted and then using that information as a bludgeon against anyone who adopts a different standard of interpretation than your own arbitrary standard of interpretation. Got it.

That's not what originalism means (at least, as defined by Scalia). But even with its flaws, it's better than relying on foreign law to inform your decisions. Originalism provides a framework for at least trying to exercise some restraint.

Ginsburg's method is a free-for-all for the views of whoever happens to be sitting on the bench. Maybe you'd like to define for us the criteria for which foreign law to include, beyond "I just like it!"

Mark Steyn ably points out, "By 'listening to others,' Justice Ginsburg means, in effect, Europe, Canada and one or two other places: There's no suggestion she's interested in Saudi jurists' views on capital punishment for sodomy or Yemeni precedents on women's rights."

[il Padrino Ute]

Originally Posted by Tex

Il Pad, here's some links with some opinions you might find instructive:

Blog entry by Ed Whelan



Column by Matthew Franck



Column by Andy McCarthy



A post by Ramesh Ponnuru

I appreciate you posting those links, Tex. I finally got around to reading them.

It would seem that many feel that the Iowa Justices felt compelled to force their own personal views upon the citizens of the state of Iowa.

[Cali Coug]

Originally Posted by Tex

That's not what originalism means (at least, as defined by Scalia). But even with its flaws, it's better than relying on foreign law to inform your decisions. Originalism provides a framework for at least trying to exercise some restraint.

Ginsburg's method is a free-for-all for the views of whoever happens to be sitting on the bench. Maybe you'd like to define for us the criteria for which foreign law to include, beyond "I just like it!"

Mark Steyn ably points out, "By 'listening to others,' Justice Ginsburg means, in effect, Europe, Canada and one or two other places: There's no suggestion she's interested in Saudi jurists' views on capital punishment for sodomy or Yemeni precedents on women's rights."

It is more accurate than your explanation of Ginsberg's "reliance" on foreign law.

Note in the quote you posted that she associates the citation and "reliance" on foreign law with that of a law review journal. While you may not understand the precedential authority granted to various sources of legal information, let me assure you that law reviews are near the bottom (if not at the bottom). They can be persuasive and helpful, but they aren't binding authority and nobody uses them as such. Are you suggesting the court should be prohibited from reading outside sources for informational purposes?

[Tex]

Originally Posted by il Padrino Ute

I appreciate you posting those links, Tex. I finally got around to reading them.

It would seem that many feel that the Iowa Justices felt compelled to force their own personal views upon the citizens of the state of Iowa.

No problem.

Originally Posted by Cali Coug

It is more accurate than your explanation of Ginsberg's "reliance" on foreign law.

Note in the quote you posted that she associates the citation and "reliance" on foreign law with that of a law review journal. While you may not understand the precedential authority granted to various sources of legal information, let me assure you that law reviews are near the bottom (if not at the bottom). They can be persuasive and helpful, but they aren't binding authority and nobody uses them as such. Are you suggesting the court should be prohibited from reading outside sources for informational purposes?

I remember watching a debate/discussion between Stephen Breyer and Scalia that touched on this topic. Scalia joked that Breyer can read foreign law as much as he wants, as long as he doesn't cite it in his opinions/dissents.

I personally don't see a reason why someone would look to foreign law for anything, unless it was just to hunt for substantiation for an opinion they already hold. [Two exceptions cited by Scalia: interpretation of treaties with foreign entities, and the authoring of a constitution.]

I think Ginsburg engaged in ridiculous hyperbole in her citation of the Holocaust. Ditto her lamentation that Canadian jurisprudence is (according to her) more oft cited in the world than American.

[Cali Coug]

Originally Posted by Tex

No problem.



I remember watching a debate/discussion between Stephen Breyer and Scalia that touched on this topic. Scalia joked that Breyer can read foreign law as much as he wants, as long as he doesn't cite it in his opinions/dissents.

I personally don't see a reason why someone would look to foreign law for anything, unless it was just to hunt for substantiation for an opinion they already hold. [Two exceptions cited by Scalia: interpretation of treaties with foreign entities, and the authoring of a constitution.]

I think Ginsburg engaged in ridiculous hyperbole in her citation of the Holocaust. Ditto her lamentation that Canadian jurisprudence is (according to her) more oft cited in the world than American.

The exact same argument can, and has been, made with respect to originalism- it is nothing more than a hunt for substantiation for an opinion already held by the author.

[Indy Coug]

Originally Posted by Cali Coug

The exact same argument can, and has been, made with respect to originalism- it is nothing more than a hunt for substantiation for an opinion already held by the author.

LOL, except that THAT substantiation comes from the Constitution rather than some Belgian legal treatise.

[Tex]

Originally Posted by Cali Coug

The exact same argument can, and has been, made with respect to originalism- it is nothing more than a hunt for substantiation for an opinion already held by the author.

Don't be ridiculous. An unscrupulous judge can abuse any legal philosophy. The point of Scalia's brand of originalism is to apply a common sense interpretation to law in an effort to restrict the judiciary, and keep the power for change largely in the hands of the people.

Ginsburg doesn't trust the people (since they once voted for people who created a Holocaust), so she thinks it's her role to help a society evolve. And if she can't find justification for what she wants in US law, she consults foreign law. There are no rules for this kind of approach outside the whims of the judge.

[Cali Coug]

Originally Posted by Indy Coug

LOL, except that THAT substantiation comes from the Constitution rather than some Belgian legal treatise.

And here is where Indy shows he doesn't know what originalism means either. Textualism is the word you are looking for, Indy. Textualism. Not originalism.

[Cali Coug]

Originally Posted by Tex

Don't be ridiculous. An unscrupulous judge can abuse any legal philosophy. The point of Scalia's brand of originalism is to apply a common sense interpretation to law in an effort to restrict the judiciary, and keep the power for change largely in the hands of the people.

Ginsburg doesn't trust the people (since they once voted for people who created a Holocaust), so she thinks it's her role to help a society evolve. And if she can't find justification for what she wants in US law, she consults foreign law. There are no rules for this kind of approach outside the whims of the judge.

You may want to read the Federalist Papers. It isn't just Ginsberg who thinks the people can go too far one way or the other in oppressing certain groups of people. Hey- was that an application of originalism? Hard to tell with the wishy-washy parameters it operates in these days.

[Tex]

Originally Posted by Cali Coug

You may want to read the Federalist Papers. It isn't just Ginsberg who thinks the people can go too far one way or the other in oppressing certain groups of people. Hey- was that an application of originalism? Hard to tell with the wishy-washy parameters it operates in these days.

Except the Federalists were trying to write (and sell) a constitution, not interpret an existing one.

Originalism is not perfect. But better to have wishy-washy parameters, than none at all.