Comments on Scalia talk

I will leave this wide-open for students to post on their reaction to Scalia’s talk.

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About Kleiner

Associate Vice Provost and Assistant Professor of Philosophy at Utah State University. I teach across the curriculum, but am most interested in continental philosophy, ancient and medieval philosophy as well as Catholic thought, all of which might be summed up as an interest in the ressourcement tradition (returning in order to make progress). I also enjoy spending time thinking about liberal education and its ends.

17 thoughts on “Comments on Scalia talk

  1. Huenemann

    I’m not a student, but here goes. I enjoyed his talk very much. I’m inclined to agree with his position of being an ‘originalist’ with respect to the Constitution (though I need to read more about this). And it would be neat and clean if judges were only expected to rule whether the Constitution really said anything about “X” rather than stretching the words to allow themselves to legislate on all kinds of issues. That’s what congress is for.

    But do we really want to leave the hot-button moral issues to majority opinion? Call me an elitist, but I think the mobs are usually stupid and wrong. (Gee, that does sound a tad elitist.) I would have liked to ask Scalia how he thinks we can safeguard ourselves against “the tyranny of the majority.” I suspect his answer would be, “By making laws through congress, and amendments to the constitution.” But that would be expecting the majority to curb its own power, for the sake of the minority. I’m pretty skeptical of such beneficence.


  2. Doug

    I am always a bit nervous about anyone that says they are an “originalist”. I am curious as to when these “originalists” begin to interpret the strict interpretation of the Constitution. For example, do these “orginalists” want to go back to the original meaning of the constitution where women could not vote nor own property, or African-Americans counted as only 3/5’s of a person? Would they defer to almost every question that comes to them that is not strictly dealt with in the Constitution with John Marshall’s famous, “it is unconstitutional for me to make this decision”?

    Or do these “orginalists” abide by every newly made amendment, even if that amendment directly conflicts with the original constitution? What if abortion, gay marriage, torture (ok, we know where Scalia stands here), etc were added to the constitution and ratified by 3/4’s of the states, would Scalia uphold these new laws?

    The reason I doubt very much that Scalia would uphold these laws and remain an “originalist” is reading his decision on Bush V Gore. This is not a political decision, I am not taking Gore’s side in this particular argument. Simply, Scalia overturned the Florida Supreme Courts decision to perform recounts and add new votes for Gore that may have swung the election in Gore’s favor. Scalia, overturned a decision made by the State’s highest court that is supposed to determine Florida’s elections laws.

    The Constitution is very straight forward in the 10th Amendement, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since elections are conducted by the states individually, having different laws for felons, districts, precincts, etc those powers have always been reserved to the states. Scalia voted to overturn the states highest authority on elections, which is strictly contrary to what any true so-called “originalist” would do since election laws are to be upheld by the States. (not to mention, Scalia’s son was a senior staff member on the Bush campaign which most men of honor would have excused themselves from this particular case.)

    Also, Scalia is in support of torture which is obvioulsy against the 8th Amendments “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The argument that the the only ones being tortured were not American citizens entitled to constitutional due process has been proven false.

    Anyway, that is just my take on Scalia.


  3. Kleiner Post author

    Disclaimer: I have to admit, I hate talking politics since I think the chatter is largely pointless. Also, I don’t think I fit neatly on the ‘right’ or the ‘left’, but it seems almost impossible for us Americans to have a political discussion that is more nuanced than that. So I wade in here with great hesitation, sure that I will be labeled some kind of fanatical Christian facist before it is all said and done.

    But I think Doug makes the precise mistake that Scalia is warning against – he is assuming that the Constitution is something that can be crafted in our own image (and that this is what Scalia is doing). Scalia’s point is that the Constitution should not be interpreted with an eye to personal or social consequences (whether we happen to like the outcome or not, or even if the outcome is for the common good), it should be interpreted strictly. The function of the Constitution is to prevent our government from becoming a tyranny, it is not meant to do anything more than that. So yes, I think originalists would defer judgment on a number of cases. Their job is not to determine the social good – that is the job of the democratic process. Their job is to interpret the Constitution. So if the Constitution does not speak to an issue, then they have no business speaking to it. (He pointed out in his talk yesterday that the Constitution does not speak to many of the things we consider most important, those things are left to the democratic process).

    Scalia’s rulings on torture do not mean that he supports torture, because his analysis is not one where his own moral views are relevant. The question is whether or not the Constitution disallows it, no matter what we might think of it. The Constitution prohibits cruel and unusual ‘punishment’, and Scalia is not convinced that ‘coercion’ of witnesses constitutes punishment (since they are not being punished for a crime already committed, but are being coerced into sharing information about a crime that is yet to be committed).

    I don’t think there is any argument that torture is awful. Personally, I am not sure if it is ever justified (though some of the unlikely but possible ‘ticking bomb’ scenarios that Scalia discusses are tough calls). I rather suspect that Scalia, being a devout Catholic, shares similar sentiments and has the dignity of each human person at the very front of his moral comportment toward the world. But the issues are not issues of personal morality – it is a question of what is Constitutional. Point is this: you might think his interpretation of the Constitution is wrong here (that he is dicing ‘punishment’ too narrowly), but this is a different thing from saying that he ‘supports torture’.

    Originalism, as I understand it, does not want to go back to the moral norms of the time of the framers (disenfranchising women, etc). Again, that makes it sound as if they have a moral agenda they are trying to push. This is the exact opposite of what Scalia was arguing yesterday. Instead, what is and is not Constitutional at the time of the framers remains so until the Constitution is amended (that is why we had need of an amendment to give women the vote). Otherwise, it is for each generation to shape her laws as they see fit according to the values of their time. The danger is when we take the values of our time and enshrine them in constitutional law, thereby forcing future generations to be legally enslaved to our moral fads.

    The Gore-Bush thing is really tired. Scalia mentioned it yesterday, the vote was 7-2. It was, as he said, ‘not even close’. The argument was that the Florida Supreme Court had not properly interpreted state election law. But you presume bias because of the possibility of potential bias (his son working on the Bush staff). Scalia argues that we need to return to the better days of the Court, a time when personal opinions did not matter because the question was an objective question of original meaning. I guess you could argue that he is in fact biased, that he is not practicing what he preaches. But I think he is pretty even on this – he has ruled in several cases against his own personal views.

    By the way, Scalia is not the champion of social conservatives he is sometimes presented to be. For instance, he has said, many times, that the framers meant only ‘living, breathing, and walking around’ people when they enumerated the right to life. In other words, he does not think the Constitution prohibits legalized abortion. He just doesn’t think it prohibits criminalizing abortion. Roe v Wade mandates abortion on demand (as if the Constitution demands that), rather than letting the democratic process sort it out. On Scalia’s originalist view, if California residents decide that abortion is morally permissible in all instances all the way up to the time the unborn leaves the birth canal, he thinks that would not be unconstitutional. But if another state decides (popular opinion) that life begins at conception, then they should be able to criminalize abortion. (This is exactly what the Texas statute was that was considered in Roe).

    I already regret posting. Anytime anyone defends Scalia they risk being branded a supporter of torture and all of these other things.


  4. Kleiner Post author

    Huenemann – What alternative would you propose? We don’t have any philosopher-kings hanging around that have moral certitude. Who will be your experts? Academics? Surely not!

    I don’t disagree with your concern, but it seems to be a necessary consequence of the messy human condition (we lack certainty about the most important things) and the democratic process.


  5. Doug

    First, let me correct some things here. I was not assuming Scalia’s position on abortion, gay rights, etc. I was merely showing that “fads” can potentially amend themselves to the Constitution. If these “fads” (as you call them) enter our constitution will they be upheld? Fads like Brown v Board of Education, Plessy v Fergueson, Dredd Scott, Roe V Wade, etc,

    Scalia’s belief that since torture is used in “coercion” and not punishment; therefore the use of punishment is not unconstitutional is absurd. Any person with common sense knows that once you are held (against your will) you must either be charged with a crime or let go. To hold a person without due process, then torturing them for information that CAN BE HELD AGAINST YOU is a complete violation of both the fifth and sixth amendments. If a person is held by any government institution (most certainly a US Citizen) that person has a right to an attorney and a right to remain silent. To try and stretch your moral views (mainly Scalia here) and say that the fact that the person being held has not been charged with a crime, nor is being “punished” for a crime is a complete moral failure. The person that is having water dripped down his face to make him feel as though he is drowning may say that he/she is being “punished” for POTENTIALLY/ALLEGEDLY having information about a given situation.

    We are not discussing whether torture works, or whether I would do it if my kids were in trouble. We are discussing whether or not a man/woman can be held without being charged with a crime (because if they were, they would be entitled to due process and an attorney). It is easy to point to the fact that he is a Catholic therefore should have some sort of great moral statute he lives by, but the fact is he stretches the laws to fit his personal biases.

    Also, dont tell me that the Bush V Gore case is “tired”. The fact is you tell me that he chose to overturn a decision because he believed that the Florida Supreme Court had “not properly interpreted Florida Election laws”. However, the vote that Florida had violated the Equal protection clause was 7-2 which is “not even close”, the vote to determine if an alternative method could be used and if time was up was 5-4. Surely, Scalia knows that the vote was closer than what he says. Surely, you knew that the 7-2 vote was only a part of the Supreme Court decision.

    No one is saying that the Supreme Court was not wrong in saying that the Florida Supreme Court was attempting or at least pushing to violate the 14th amendment. However, it was the following vote that single handedly ended the election. The court decided in a 5-4 vote that time was up, and no other alternatives should have been used even though only THREE counties had been recounted. Newspaper after newspaper, organization after organization, has shown that a complete recount of Flordia would have led to a victory for Albert Gore.

    To say that this case is “


  6. Kleiner Post author

    I am not at all happy with the Bush administration policy on torture, and I think the policy is (to use your words) a moral failure. In fact, that is itself an understatement.

    But I don’t think the Constitutional matter is as obvious as you seem to think. For instance, it is already legal to hold a witness who is not guilty of any crime himself in jail – for an indeterminate amount of time – in order to coerce them to testify. To insist that anything other than your view here is ‘absurd’ is to accuse Scalia of being either a complete idiot or one of the greatest hypocrites of our day. I tend to be really unmoved by arguments that necessitate the demonization of their opponent in order to win.

    I also think you are much too quick in your assertion that ‘the fact is [Scalia] stretches the laws to fit his personal biases’. Is this so obviously a fact? Two reasons to doubt this assertion: (a) this is precisely the kind of judicial behavior that he is arguing against and (b) he has argued against his own personal views on behalf of the Court many times. Is it so difficult to believe that he really sets his own views aside and really tries to understand the original meaning of the Constitution? Has the postmodern oprah culture that places feeling over thought become so entrenched that it is impossible to imagine someone being really objective?

    Yes I did know that the decision was two-fold, and Scalia discussed this yesterday. Fine, mercy. You win without further consideration of the arguments, I am just sick of talking about that stupid election. (I voted for Gore in that election, by the way).


  7. Huenemann

    Egads, I agree with Kleiner, so maybe I’m a Christian fascist. But I also agree with Doug about the Bush V Gore case, based on the little bit I’ve read: the 5-4 vote, which Scalia disingenuously glossed over in his talk, was the real kicker. The torture case is tougher, since it is dealing with war and conduct in other countries (under our supervision). But, tellingly, even this politically-conservative court has decided against Bush on a couple of cases.

    Scalia, by the way, started out his talk by praising the framers for not sticking their own morality into the Constitution (or at least tried not to). Inevitably, the document needed and needs to be amended, though Scalia’s recommendation is to do so conservatively (meaning: minimally), rather than risk turning fads into laws. Sensible, on the whole.

    I don’t have any solutions. Right now, with McCain up in the polls, I’m ready to trash the very idea of popular democracy and allow only licensed voters to vote — people who pass a basic literacy test, and can demonstrate some knowledge of where each candidate stands on significant issues. WTF, now I’m a fascist and an elitist! And I’m arguing for theism on Thursday!


  8. Doug

    (Sorry my keyboard died) To say that this case is “tired” is to say that it was fair that the man that received more popular and apparant electoral votes lost the election. Leading us into 9/11, Iraq, serious economic troubles, and the loss of respect worldwide. Granted this is my bias in this given sentence.

    It was Scalias belief that Florida ( a state which apparently does not know how to make its own decisions-since you said Scalia was for state rights abortion) could not figure out how to solve their own election problem.

    Now, as far as your comments on Roe V Wade. The case of Roe V Wade simply stated that abortion (being a current right in certain states) should be accessible to all of those that chose to have an abortion. Abortion is one of those that I might actually agree with Scalia and say its a state right issue, but the reason it was made was to simply keep down the number of deaths from sepsis from woman trying to do it when they could not go to a state that performed it legally. It was an attempt at utilitanism I believe. I am pro-choice, but I certainly understand the constitution and would not get to many objections from me with the states right issue.

    I am not trying to come off as a prick here, but if we are going to be intelligent men that actually look at both sides of the issues as philosophers; it seems to me that Scalia’s torture decison should be found appauling to all of us.

    Also, his decision in Bush v Gore was not close at 5-4 in ending the recount, so it is ridiculous to take his “not even close” comment seriously. And yes, his son being a strategy advisor for the Bush Administration is a big deal since he helped end an election recount in a narrow 5-4 vote. Had he properly recussed himself, it would have been a stale mate. Those votes 5-4 were cast politically on both sides. You know it, and I know it. So lets not pretend that there was some great constitutional decision handed down here.

    Anyway, I am glad to hear he came to USU.


  9. Doug

    Lol, I agree Huenemann! I think an ability to find Iraq on a map should be a great start here too! I cannot believe he is up in the polls. It amazes me how these country folk ALWAYS vote against their interest.


  10. Kleiner Post author

    Yes Huenemann … Yes. “The hate [err, Christian love] is swelling in you now. Take your Jedi weapon [arguments for theism and political conservatism]. Use it. I am unarmed [with any coherent arguments against your views]. Strike me down with it. Give in to your anger [err, theism]. With each passing moment you make yourself more my [God’s and/or Bush’s] servant.”

    Doug – you are not coming off as a prick at all. I probably am.
    On Roe:
    a) Abortion was not a right, it was legal in some states. There is a difference between something being legal and you having a ‘right’ to do it. In the Roe decision the Court made it a right.
    b) The Court made it impossible for the citizens to make a value judgment (as to when life begins or when pre-natal life should be protected) for themselves. Period. Full stop. Whatever one might think of abortion, if you think Scalia is reasonable when he talks about judicial restraint, then you think Roe was an awful decision. The decision wrote into Con law a value judgment, decided by elite jurists rather than allowing those difficult value judgments to be sorted out democratically. This was Scalia’s whole point yesterday. It is a position that I find extremely difficult to dispute (note that Huenemann and I seem to agree on this issue!).

    One more thought:
    Is it so obvious that people so often vote against their interests? Perhaps they just don’t have the interests you think they should have, or perhaps they prioritize their interests in a way that is different than how you think they should. Or perhaps, just maybe, they are smart enough to know that big government programs are not the solution to every problem they face?
    That said, I am not here to defend every vote. It is embarrassing how politically/religiously/culturally illiterate our country has become. I think there are loads of people on both sides that vote as they do for really stupid reasons (I don’t think either party has a monopoly on stupidity).


  11. Doug

    I was using the term “right” very generally! I meant that in certain states abortion was legal to perform;therefore, it was a right afforded to that particular states citizens.

    Again, I understand very well the Roe V Wade case, and again I would actually rule (if I were a judge) that it was a states right issue since all laws not delegated in the constitution specifically for the Federal Government are held for each individual state.

    I do believe that the Roe case was not necessarily decided by activist judges, rather it was a decision to save already born lives (I will show what I mean in a moment). Many women were literally killing themselves to perform illegal abortions; therefore these judges attempted to make a Utlitarian decision and save lives. I am not saying it was the right decision, but at least it was an attempt at philosophy so you should be happy!! lol

    Anyway, as a side note: The 14th Amendment is very specific as to who can have rights in this country, and it looks like the unborn (if taken literally) have none-this amendment is one argument many abortion advocates have (as creepy as it may sound) legally to push for legalization. The 14th Amendment states:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    All persons born or naturalized have these rights of life liberty and property-not the unborn!


  12. Doug

    Yes, I do believe it is so obvious people vote against their own interest. I have lived in serious poverty (in a tent after our house was foreclosed on in the early 90’s) I have watched family, friends, neighbors, and church members continue to vote (on both sides of political spectrum) for candidates that definatly did not vote their interest. Whether it was those in Michigan that believed Clinton would help them, then NAFTA took their jobs, or Reagan and he took their unions.

    We cannot rely on God, Gays, and Guns for our only motivation to vote as an adult. We have priorities like our children that now inherit TRILLIONS of dollars of debt. Yet they support minor tax cuts for them, and major corporate tax cuts.

    We cannot ignore our ability to find a job given that the unemployment level is over 6%. Millions of jobs have left the country, inflation may pass 7% this year, and it costs over 3 times the amount of money to drive to work these days then 7 years ago.

    47 Million do not have health insurance, and whether or not you believe the government should furnish that insurance, you must admit it is costing the tax payers billions.

    To vote for either party that has been in power and has devestated our economy, increased the national debt by over 6 trillion, and lied us into a war that has cost billions and have taken 5000 American lives-you are voting against your interest.


  13. Kleiner Post author

    Do you have to pay for a post like that, is it subject to campaign finance laws?

    In short, you think voters have mis-prioritized their interests. You take it that economic interests are much more important than other social interests. I am not here saying you are wrong, but aren’t people welcome to disagree with your assessment of what are the most pressing issues of our time? The “God, Gays, and Guns” remark suggests that you think, instead, that anyone who disagrees with your prioritization of issues is an idiot (well, is childish). But can’t someone reasonably think that certain social issues (say, abortion) are more important than their own economic welfare? (And this assumes that it is obviously the case that the Dems have a better economic plan than the Repubs).

    So you are an elitist. Apparently Huenemann is too. Sometimes I think I am. I am not judging you for that. But it is a very un-democratic sentiment.

    I try (not always with success) to be a moderate when it comes to my assessment of people. I don’t think most people are incredibly stupid, nor do I think most are incredibly wise. Again, I am always hesitant about positions that presume that everyone else is just plain dumb or evil.

    Aside: I tend to think that Presidents get far more credit than they deserve when the economy goes well, and get far more blame than they deserve when the economy goes south. But I don’t want to get in the way of your well scripted talking points.


  14. Doug

    Hey, thank you for the “well scripted talking points” comment. I have been politically active for over ten years now and have tried hard to sharpen my talking points when debating politics.


  15. Kleiner Post author

    I really respect people who, like you, live in Utah and are so engaged in national politics. Really. It is easy to just write off the national campaigns here (since Huenemann will be a theist before Obama ever takes the state of Utah). My politics has become much more local since I moved here. I busy myself with bicycle advocacy and trying to keep ATVs/snowmobiles out of the backcountry. And I sometimes intentionally cuss in public in order to upset the cultural hegemony. Does that count as ‘political activism’?
    And I am a local snob – how can citizens of Cache Valley have been so stupid to vote down the public transit tax increase when it came up last time?!?!?


  16. Doug

    Dont get me started on Utah politics. Logan has yet to adopt an emission inspection for cars even though Logan is fined every year by the EPA for air quality. Not to mention, the Utah State Government wanted to stop out-of-state students from attending the universities here by expanding the residency requirements that nearly bankrupt USU about 6 years ago.

    The politicians in Utah are almost always extremists. They are either Anti-mormon hard-core liberals, or extreme right wing. There needs to be a balance of Utah, but I dont know how that is going to happen!



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