Law and Justice with Antonin Scalia

[Iobi123]

@jpsartrean, ok thanks.

[Iobi123]

@mandowalt, justice scalia is saying that congress makes the laws. lets say congress made a law that enacts abortion, would he affirm that? i thought he affirmed that under originalism it should be prohibited, but natural law affirms enactment of abortion.

[jpsartrean]

@Iobi123 What do you mean by 'enacts' abortion? Do you mean require? I would think under Justice Scalia's view, since the Constitution is silent regarding abortion, Congress/the States could enact laws prohibiting abortion just as well as laws actually REQUIRING abortions... I think this would be the only consistent viewpoint...

[imblessedso]

@jpsartrean That is bad logic.

[joshke17]

He stands for a needed antipole for out of control pragmatism. Though i myself am more a pragmatist, but every theory, every point of view needs rationality and reason. And the main motor for this reason to be produced is opposition. That is what Scalia gives and that is why he deserves very much respect.

[promisedeyes]

@joshke17 Even if I disagree with him, and I have many times, I must respect his intellectual honesty and his attention to legal detail. Plus he tries to put that into readable language rather then legalese.

[USAHistory1]

I agree with Scalia when he says here that abortion was criminalized for 200 years, so don't find a protected right. Yet when no gun law had ever been invalidated by a federal court for 200+ years, Scalia decides to invalidate 2 local laws.based on "originalism".

"intent was to guarantee the right of states to form militia, not for individuals to bear arms." Robert "Bork Says State Gun Laws Constitutional," LA Times, 3/15/,89. J.P.Steven's dissent in Heller was also "originalist".

[USAHistory1]

"Originalism" is no barrier to subjectivity. In the two recent gun cases Scalia took the power out of elected officials hands and gave it to the courts.

"Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds.." Former Dean of the Harvard Law School 1946-1967, Erwin Griswold, Washington Post, November 4, 1990

200 years but Scalia and crew have it all figured out now. LOL

[7beers]

I like what Scalia says, but he comes across as so arrogant and condescending.

[7beers]

@7beers I apologize and take it back. Seeing the video again, I feel that my original impression of Scalia was wrong.

[MrWsad]

Why doesn't Scalia run for senate or presidency as a republican instead of being a judge. Judges are supposed to be impartial.

[gmaratos]

@MrWsad you make a very good point that is what alot of people say. Unfortunately, every judge on the supreme court has his political affiliation,  eventhough they aren't alowed to tell you.

[dragan221]

@MrWsad Being rigid in the interpretation of the constitution IS being impartial. Changing the interpretation based on day to day whims like the liberal judges are in favor of doing is not impartial because it depends on the political opinions of the judge.

[TheStrong32]

Justice Scalia incorrectly states that the first instance of Substantive Due Process (SDP) was Dred Scott (1857). Actually, the first use of SDP by SCOTUS was five years earlier, in Bloomer v. McQuewan, 55 U.S. 539 (1852).

[danielcooper1000]

We will not find justice at the hands of corrupt judges. (See YouTube videos) Judge to Judge on Illegal Payments to Judges / Evil Triangle of Court Corruption / Richard fine / Dr Shirley Moore slush funds /SBX 211. To end this title wave of corruption in our country must start with the corrupt judges. We can not bring evidence of corruption to corrupt judges. Los Angeles Superior Court judges are illegally and unconstitutionally taking 50,000.00 each for a total of 23 million per year.

[MrWsad]

Wtf is wrong with Scalia. He now says that doctrine of incorporation shouldn't apply to the states and yet he voted against Chigaco's ban on weapons because of the second amendment. He is controverting himself.

[joha841]

@MrWsad He's saying that incorporation has to stay.

[ThePoliticalMoose]

@MrWsad Read Book 14 of Leviathan to begin to understand the concept of "Inalienable Rights."

[Wyrmwould]

"Thou shalt not lie" is not one of the Ten Commandments; rather, it reads "Thou shalt not bear false witness against thy neighbor." I hope he knows the Constitution better than he knows the Bible.

[HailMaryHolyMary]

O Glorious St. Thomas More, Patron of Statesmen, Politicians, Judges and Lawyers, your life of prayer and penance and your zeal for justice, integrity and firm principle in public and family life led you to the path of martyrdom and sainthood. Intercede for our Statesmen, Politicians, Judges and Lawyers, that they may be courageous and effective in their defense and promotion of the sanctity of human life - the foundation of all other human rights. We ask this through Christ our Lord. AMEN

[ServantOfYinepu]

Thumbs up if you came here from Robert Allison's history class.

[ebeatworld]

Scalia is a GREAT man. God bless him.

[kal4287]

...what sense would it make for the Framers to include specific rights that they felt needed to be protected from the Federal Government, but allow all of the State governments to trample those rights at will? State Tyrants are tolerable, but Federal ones are not? If no Free Speech was allowed in any State, for example, would a Free Republic still exist? Extreme..yes, but not un realistic. Incorporation is an argument that should never have been made.

[RWT683]

@kal4287 Your mistake is you are thinking of the constitution as made from the top-down instead of correctly, from the bottom up. The US constitution was a cession of power from the 13 states, who were made fully independent and sovereign by the peace treaty of 1783, to the federal government. It was not made to create a perfect national society, but to create a national govt capable of ensuring peaceful coexistence of the states while restraining that govt from doing anything else.

[RWT683]

@kal4287 If a state contrived to oppress its people it would be up to the people of that state to change their govt and their laws. Each state had, and has, its own constitution. To the framers, the states, being closer to the people, were better guarantors of liberty and more representative of their interests. They were not concerned with limiting state power (except in a few explicit instances) in a document which had the sole purpose of limiting the national govt This changed with 14th amndt.

[kal4287]

Justice Scalia is correct, an Ammendment that applies the Bill of Rights equally to the States would probably solve the issue. I do think that the Framers did intend for each right listed in the Bill of Rights to apply not only to the Federal Government, but to the States as well. If none of the Bill of Rights applied to the States, then a State could Nullify any Ammendent simply by taking a right away from their residents. Would Fed Law overrule 50 states that dont allow free speech?

[italoirish888]

It really is kind of silly that supreme court oral arguments aren't televised. They're 9 of the most powerful people in the country and yet they're the only branch of the federal govmn't that conducts their business behind closed doors. The taxpayers are paying their salaries and should have a right to observe their actions. 

[sugarkang]

@italoirish888 The reason supreme court arguments aren't televised is because television makes court participants change their behavior. Your assertion that they conduct business behind closed doors is also incorrect. They issue rulings and opinions which are available for the public to read freely. Just because you don't want to read the opinions doesn't justify televising court proceedings.

[amozlee]

in layman's terms:

1) you(the people) created a rule book to a game.

2) you give him the task of reading the rules back to you.

3) if u don't like what the book says, YOU can change the rules

4) but don't set the new rules in stone just yet.

i don't have any law qualifications... but that's what i got out of this.... am i wrong?

[dylanvalente]

I do not see how the issue of same sex marriage as equal protection is an "easy question." Especially when the way he answers the question is to say equal protection definitely does not require same sex rights. Just because equal protection wasn't understood to protect homosexuals hundreds of years ago? Could it be that they were wrong to believe equality didn't protect homosexuals' rights, and that simple logic requires that it really does?

[nnjhansen]

Scalia says it is an easy question because there is no doubt that the 14th Amendment did not mean that the states had to redefine marriage to allow for two people of the same sex to marry when it was passed and ratified.

Scalia would say that if you believe they were wrong then, the solution is simple, pass a new law that says what you want it to say.

[wilthiswork]

I'm not sure how to understand, then, Scalia's agreement with the core decision in Brown. After all, the Congress that drafted the Civil War Amendments turned around and segregated the D.C. public schools. So either the actions of past generations are not dispositive (past generations could have failed to live up to the meaning of their own standards) or Brown was incorrectly decided.

[sklanger]

@wilthiswork Except they did not "turn around" and segregate the D.C. public schools. First, segregation was already in place before the passing of the 14th Amendment -- instituted by an earlier Congress, and not the one that proposed the amendment. Second, the 14th Amendment applies to the states, and not to the District of Columbia, so what D.C. did is hardly relevant to the original meaning of the 14th Amendment.

[socalcraigster]

Equal Protection applies in certain circumstances. Homosexual marriage is not one of them. You can organize and put it to a vote. It is not for the judicial branch to legislate for the bench. It is very eassy if you take the time to learn how our system was designed. It was not created in a month. It took alot of effort. A civil union is the legal equivilent of marriage. Traditionally, marriage is between two individuals of the opposite sex.

[robert140602]

If you allow your right to bear arms,it's all over.

American folk...Don't let this happen.

[BOOLsheet]

Scalia keeps talking about the 'exceptions to the majority's will in the Bill of Rights' but I've also heard him say that the Gitlow v NY (I believe) decision is "probably wrong" and under originalist interpretation, the Bill of Rights only did apply to the states.Then how is the Bill of Rights an exception to the will of the majority if the state isn't bounded (according to originalist views of the incorporation doctrine) by the Bill of Rights and can take away free speech, property etc?

[robislost]

I'm trying to follow what you're asking. Originally the Bill of Rights only applied to the federal government, not the states. The 14th amendment applied the due process clause of the 5th amendment to the states. Gitlow pretty much incorporated the rest of the Bill of Rights to the states.

[oneinthefens]

It is not an originalist position to say that the Bill of Rights, when ratified, only applied to the federal government. It is a fact; until about the 1920s, no court had ever applied the BOR to the states. What the controversy is about is whether the 14th Amendment -- ratified in 1865 -- applied the BOR to the states. That is "probably wrong." To answer your question: You have to keep in mind that there are different majorities -- i.e. a majority of the country, and a majority of a state.

[BOOLsheet]

the controversy, and i think justice black was at the head of it, was of whether the bill of rights applied to the states. jusitce hugo black said it did. on another note im VERY curious to see how justice scalia decides to rule on the upcoming case that is to decide whether the states can prohibit firearms. we all know the federal govt cannot, but

[espanto28]

i agree that legislation is the key engine for change in the laws. The supreme court cannot legislate from the bench even though it would be stupid to say it doesn't because several cases, Lochner vs. Posner, US vs. VMA changed several laws. But to make constitutional changes is extremely difficult. However change in legislation is much easier and more efficient. In this case I agree with Scalia a truly intellectual giant.

[jsumudio]

I got to see Justice Scalia speak in person and while I didn't agree with absolutely everything he said, I agreed with a great deal of it. He was also incredibly articulate and over time has become my favorite justice. His thoughts on originalism are very persuasive.

[calimar28]

Scalia is the brilliant one on the supreme court, and will go down in history as the intelectual giant on that court.

Thanks for posting! Amazing stuff!

[csuewells]

The ultimate end point of Justice Scalia's approach to Constitutional law is this; whatever social and religious or political parameters existed in 1789 is what we must live by today. I refuse to believe this man thinks the best form of government is to rewrite the Consitution every forty years to tell him what we want in each generation. His disengenuous view of the 14th leaves him no explaination for Justice Thomas sitting next to him and is a refusal to see he participates in interpretation.

[mandowalt]

You assume that it is the Constitution that sets all social, religious and political parameters, when in fact it is mostly statutory law that deals with those issues. If you want to change the "social and religious or political parameters" you need only persuade your fellow citizens to pass a law that will bring such a change about.

[mandowalt]

I think you probably just misunderstand Justice Scalia and the Supreme Court as I once did. I used to believe that it was the job of a Justice to sit on the court and decide what laws are good,bad, just, unjust etc., but rather their proper role is to tell us what the law is, not what it should be.

[dseanmat]

Many thanks for posting this enlightening discussion! I have always felt that Justice Scalia is a national treasure and an intellectual titan. I'm grateful for his presence and his influence. I find it worrisome indeed that the trend in too many of our institutions of higher learning is, in Justice Scalia's own words, "diversity in everything except in ideas."