Scalia on Peter Robinson's "Uncommon Knowledge"

[Tex]

Question (regarding Washington and Adams' disagreement over the consitutionality of a national bank): "What is a poor little layman to think of originalism, when it's historically clear that ... two of the key figures involved in drafting the document disagreed over the meaning?"

Look, I do not propose or suggest that originalism is perfect, and provides easy answers for everything. But that is not my burden. My burden is to show that it's better than everything else. The originalist has easy answers for many things, especially the most controversial things in modern times: whether the equal protection clause requires that the states permit same-sex marriage. I mean, you know, that's not a hard question for an originalist. Nobody ever thought that's the equal protection clause meant. It didn't mean that when it was adopted, it doesn't mean that today. It doesn't change to mean that just because the Supreme Court thinks it's a good idea.

Whether there's a right to abortion: for Pete's sake, it was criminal in every state for 200 years! Now, if you want a right to abortion, create it the way most rights are created in a democracy: persuade your fellow citizens it's a good idea, and enact a law. But don't tell me the Constiution confers such a right. So, I have easy answers to a lot of stuff, whereas for the living constitutionalist, there are no answers. Every day is a new day!

I have sat with four colleagues--one still on the court, three since deceased--who thought that the death penalty was unconstitutional. It's mentioned in the Constitution! But every day is a new day, and you know, it used to be constitutional and maybe tomorrow it won't be.

http://tv.nationalreview.com/uncommo...ZhNDU1YjZlMjI=

[Tex]

Another beautiful exchange:

Robinson, quoting Scalia: "'The reality of the the matter is that generally speaking devotees of the living Constitution do not seek to facilitate social change, but to prevent it.'"

Scalia: Of course.

Robinson: "All right ... Roe vs. Wade is to facilitate social change, is it not?"

Scalia: No, no, no. To make things change, you don't need a constitution. The function of a constitution is to rigidify, to ossify, not to facilitate change. You want change? All you need is a legislature and a ballot box. Things will change as fast as you like. My constitution ... very flexible, changing one: you want a right to abortion? Persuade your fellow citizens that it's a good idea, and enact it.

Robinson: "Enact an amendment?"

Scalia: Pass a law! You don't need an amendment to the consitution! Pass a law. And then you find out, "Gee, the results are worse than we had ever thought," you can repeal the law. That's flexibility! The reason people want the Supreme Court to declare that abortion is a constitutional right is precisely to rigidify that right. It means it sweeps across all 50 states, and it is the law now and forever, or, you know, until the Supreme Court changes its mind. That's not flexibility. That's not what they're after.

Man, how I wish we had more of him sitting on legal benches everywhere in this country.

http://tv.nationalreview.com/uncommo...AyNDI3YTg2ZmI=

[Tex]

I know no one really cares about this but me, but here's a clip from the 5th segment of this interview:

Robinson: "Five decades from now, what will your historical reputation be? What do you hope your historical reputation will be?"

Scalia: "Oh my. You know, I’m not a great believer in legacy."

Robinson: "You're not!? Then what is the point of writing dissents?"

Scalia: "Not to get a legacy. It's to get the thing right—to get the society to turn back to what was the proper interpretation of the Constitution. I don't care about my legacy. I'm going to be gone, and you know, either in great joy or great pain, one or the other! And it's going to matter very little to me whether I'm being praised or damned in this world. The legacy doesn't matter.

What matters is the Constitution. We had a wonderful thing here. We have a wonderful thing here. I truly believe it can't continue if we simply turn over so much of the democratic self-governance which is what makes us great to unelected judges.

On this point, Robinson received this email from a viewer:

I wanted to write you about this short exchange because it’s just so important. I went to law school at a third-tier small school in Salem, Oregon. (Willamette). It’s the kind of small law school that serves places like Oregon well. A lot of our grads are on the bench here and, even though people outside of Oregon are likely to not know the school or even pronounce its name correctly, it’s an imporant institution in the Oregon bar. That bar, and Willamette, are both very liberal institutionally.

At the time I attended Willamette, there was no conservative majority on the Supreme Court and to the extent one read Justice Scalia’s opinions in Con Law there were almost always dissents.

I cannot overstate—literally, I cannot overstate—how critically important these dissents were to the education of my fellow law students. Time and time again I saw my fellow students wrestle with the ideas and positions put forth by Scalia in dissent and, given their force, their power, their logic and their reasoning, again and again I saw liberals, for the first time in their lives, begin to ask serious questions about the wisdom of the majority legal culture. I even saw more than a few begin to change their minds on key issues and, liberal professors aside, the cumulative effect of the dissents was to bring to the fore in the students’ minds key issues of federalism and the proper role of the judiciary in our system of government.

Even largely in dissent, I can think of no other single Supreme Court justice who had as large an impact in shaping the Con Law views of my fellow students. The guy is a gem, a justice who I firmly believe will go down in Supreme Court history as one of the most important justices ever to serve.

[il Padrino Ute]

I really like what Scalia is saying about leaving a legacy. It's refreshing to see someone who wants to actually do the right thing.

Bill Clinton, Bush 2 and Obama should take note.

[Tex]

Scalia continues to be proven right. If you can't convince your fellow man, just convince a few judges. Minority rule.

Iowa Supreme Court unanimously legalizes gay marriage in Iowa.

http://www.desmoinesregister.com/art.../NEWS/90403010

[Indy Coug]

I especially like this one

Robinson: "Enact an amendment?"

Scalia: Pass a law! You don't need an amendment to the consitution! Pass a law. And then you find out, "Gee, the results are worse than we had ever thought," you can repeal the law. That's flexibility! The reason people want the Supreme Court to declare that abortion is a constitutional right is precisely to rigidify that right. It means it sweeps across all 50 states, and it is the law now and forever, or, you know, until the Supreme Court changes its mind. That's not flexibility. That's not what they're after.

[Tex]

I of course disagree with it, but if you're going to legalize gay marriage, this is the way to do it. The voice of the people, not the voice of the robes.

Vermont becomes the first state to legalize gay marriage via legislature, unlike the anti-democratic judicial tyrants in Massachusetts, California, and Iowa.

http://www.washingtonpost.com/wp-dyn...040701663.html

[Cali Coug]

Originally Posted by Tex

I of course disagree with it, but if you're going to legalize gay marriage, this is the way to do it. The voice of the people, not the voice of the robes.

Vermont becomes the first state to legalize gay marriage via legislature, unlike the anti-democratic judicial tyrants in Massachusetts, California, and Iowa.

http://www.washingtonpost.com/wp-dyn...040701663.html

Tyrants! Horrible tyrants!

Have you ever read the Iowa Constitution? I will venture a guess that you have not and I will also venture a guess that you were unaware that the decision was based on the Iowa Constitution.

[Tex]

Originally Posted by Cali Coug

Tyrants! Horrible tyrants!

Have you ever read the Iowa Constitution? I will venture a guess that you have not and I will also venture a guess that you were unaware that the decision was based on the Iowa Constitution.

I'm sure that's what they said. When judges see whatever they want to see in the constitution, it actually makes the constitution meaningless.

Scalia's example of some justices thinking the death penalty is unconstitutional--when it's explicitly mentioned--is hilariously classic.

[Cali Coug]

Originally Posted by Tex

I'm sure that's what they said. When judges see whatever they want to see in the constitution, it actually makes the constitution meaningless.

Scalia's example of some justices thinking the death penalty is unconstitutional--when it's explicitly mentioned--is hilariously classic.

In other words, no you haven't read it, and no you didn't know that was the basis of their ruling.

Thanks for your insight.