Immoral Maxim #12: The Founders' Vision

IMMORAL MAXIM #12: THE FOUNDERS' VISION AND THE LAST REFUGEE OF A SCOUNDREL

#12A. The Declaration of Independence, First Words:

“When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected with another, and to assume the powers of the Earth, the separate and equal Station to which the Laws of nature and of Nature’s God entitle them, a decent Respect to the Opinions of mankind requires that they should declare the causes which impel them to the Separation.”

#12B. From The Constitution of The United States, Article VI:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;”

Immoral Maxim #12A. Disrespecting the Opinions of mankind:

“But the Prize for the Court’s most Feeble Effort to fabricate “national consensus” must go to its appeal to ... members of the so-called “world community,” ... Irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people...’ Where there is not a settled consensus of our own people, the views of other nations... cannot be imposed upon Americans through the Constitution.” [Atkins v. Virginia (2002), Scalia dissent.]

Immoral Maxim #12B. Mixing racial and national identity:

"In the eyes of the government, we are just one race here. It is American." [Adarand Constructors, Inc. v. Pena (1995), Scalia concurrence.]

Moral Maxim #12. A somber and sobering reality:

"Patriotism is the last refuge of a scoundrel." Samuel Johnson

Scalia appears to think that once the United States declared its independence in 1776, we as people were henceforth and forever footloose and fancy free to follow our own self-sustaining reliable moral compass unaffected and uninfluenced by the deeds and thoughts of other human beings outside our borders. It is, of course, not surprising that Death Penalty cases such as Atkins v. Virginia draw particular fire and ire from Scalia. In our world today, only China, Iran, Iraq and Saudi Arabia utilize the Death Penalty on a more frequent basis. But, let us consider the issue of foreign law in more detail.
Justice Scalia has been particularly vocal both on and off the court in arguing that the Supreme Court should only consider U.S. law and U.S. jurisprudence in its decisions. [F 12-1] He has been particularly insistent upon this in constitutional issues related to the death penalty for the young or the mentally impaired and also in matters of executive avoidance of treaty obligations. He has taken a number of cheap shots at almost all references to world opinions in these matters. I used the term ‘cheap shots’ advisedly because the opinions of the justices he disagrees with do not use world opinion or international law as dispositive and/or imperative principles in those cases which do not involve international treaties. And he is inconsistent. Scalia’s dissent in Morgan v. Illinois (1992) ends with a final paragraph which cites both the German Immanuel Kant and the Bible’s Book of Exodus. [F 12-2] From time to time, several justices have indeed found that legal issues addressed in the jurisprudence of other countries provide us with food for thought. Why Scalia cannot admit that the same is true for himself does him no honor.
The Constitution also states that “This constitution... ; and all treaties made, under the authority of the United States, shall be the supreme law of the land.” There is, of course, no ‘Constitutional exception’ for the President on this issue. In Scalia’s opinions on Guantanamo detainees he has argued that the U. S. base at Guantanamo was, for legal purposes, “Outside” of the United States and thus the President’s actions were ‘outside’ the legal control of the Court. Of course, other than prisoner revolts and occasional visitors and low level workers, Guantanamo has been an American-run operation, spending American dollars, using American soldiers, following the directives of American generals and American presidents, and showing to the entire world an Ugly American face that is absolutely at odds with our own ideals.
The second citation above about the “American race” is revealing. Scalia wishes to assert that as we are now all fundamentally protected against de jure segregation, we should let bygones be bygones and huddle together under the “We are all Americans” umbrella. Now, to be sure, we cannot right all wrongs 150-300 years after the fact, but the realities of de facto prejudice and bias are still realities today whether the Roberts Court or any Court can or should impose legal remedies. Seemingly, commendable — but in effectivo somewhat insidious — is Scalia’s attempt to incorporate racial loyalties into national loyalties with his comment “we are one race.” In War-on-Terror decisions by the Supreme Court which concern non-Americans, Scalia argues consistently and vituperatively that executive notions of military and/or foreign policy trump any putative rights of non-American prisoners of war held at Guantanamo and elsewhere. I believe that Scalia’s notion of American jurisprudence could be fairly characterized with the following words which I provide here:

‘They [Al-Qaeda, Taliban, and (all) of their cohorts in terror who are not citizens of the United States] are ... to be regarded as warriors of an inferior order, and altogether unfit to be associated with those other prisoners of war who are indeed subject to the laws of War and Common Article 3; and so far inferior in legal status, that they have no rights against which a soldier would be bound to respect; and that these terrorists may be justly and lawfully tortured to benefit the behest of the President and Vice-President of the United States and their officers.’ [Import of Scalia’ opinions as characterized by the author.] [F 12-3]

There is, I am afraid, nothing unfair in my characterization. Justice Taney deemed that Slaves were mere property and thus proper targets of the Fugitive Slave laws — thus outside the protection of the law. Scalia has argued that foreigners captured by Americans soldiers and American allies who are deemed to be possible terrorists are proper targets of any techniques utilized by the American President and his lieutenants in the field — thus outside the protection of the law.
Scalia’s vituperative and passionate assaults on the Court’s judgments in habeas corpus cases involving Guantanamo detainees are particularly noteworthy in its insistant implication that his position and those of his sympathizers are is wrapped in genuine patriotic and/or legal substance. Typical language from his dissents in Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008):

“For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated prior law, is judicial adventurism of the worst sort.” AS dissenting in Rasul v. Bush (2004).

“It is not clear where the Court derives the authority--or the audacity--to contradict this determination. If "military necessities" relating to "duty" and "discipline" required abstention in Councilman, supra, at 757, military necessities relating to the disabling, deterrence, and punishment of the mass-murdering terrorists of September 11 require abstention all the more here. AS dissenting in Hamdan v. Rumsfeld (2006)

“Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause… It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court... that evidence supports the confinement of each and every enemy prisoner.” AS dissenting in Boumediene v. Bush (2008)

In these particular opinions, Scalia has embodied a blind zealotry which undermines both the rule of law and any moral justification for the War on Terror. The issue is not whether Al-Qaeda are terrorists; the question for him and our Supreme Court is what sort of America do our justices represent? Fortunately, until now at least and over the objections of one Antonin Scalia and others who succumb or pander to fear, our Supreme Court has in some recent cases tried to call upon the better angels of our nature in these sometime terribly difficult times.

There is nothing patriotic about a jurisprudence which asserts that the President of the United States and his minions are members of an executive branch untrammeled by judicial restraint and/or the laws of war and/or international treatises and/or the principles we propounded in executing Nazi leaders at Nuremberg. Whoever has ears to hear, let them hear!!


FOOTNOTES FOR REPARTEE #12
[F 12-1] Exceptions, of course, for international agreements such as occur in trade law.
[F 12-2] I have no quarrel per se with his citations. Indeed, I think both citations are pertinent to his argument. However, their use is inconsistent with his stated principles.
[F 12-3] Cf. Actual words of Chief Justice Roger Taney, “They [imported African slaves and (all) of their descendants] had... been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might be justly and lawfully [emphasis mine] be reduced to slavery for his benefit.” Taney in Dred Scott v. Sanford.

CASES CITED:

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) Scalia concurrence
Atkins v. Virginia, 535 U.S. 304 (2002) Scalia dissent
Boumediene v. Bush, #06-1195 (2008) Scalia dissent
Dred Scott v. Sandford,19 Howard 393 (1857)
Hamdan v. Rumsfeld, #05-184 (2006) Scalia dissent
Morgan v. Illinois, 504 U.S. 719 (1992) Scalia dissent
Rasul v. Bush, 542 U. S. 466 (2004) Scalia dissent