Table of Contents:The Unjust Judge (Antonin Scalia)

TABLE OF CONTENTS: IMMORAL MAXIMS OF AN UNJUST JUDGE
SUBSTANTIVE ARGUMENT WITH RHETORICAL COLOR ADDRESSING SOME OVERPRAISED REMARKS OF JUSTICE ANTONIN SCALIA
[1st Postings (June 27, 2010)]

PRELUDE
1. THE COVENANT SHORN (Divorcing the Constitution from the Declaration of Independence)
2. THE OATH AND THE MAN: DUTY DEPRECATED
3. THE TEXT OF THE CHARTER: HONOR OR MUMMIFICATION
4. THE FOUNDER'S CONSTITUTION AND OUR CONSTITUTION (A less polemical Interlude)
5. 5th & 14th AMENDMENT: DUE PROCESS (Formal Procedures versus Duty, Substance, and Reality)
6. 1st AMENDMENT: THE ESTABLISHMENT CLAUSE (Religious Freedom versus the Coveting of Preferential Treatment)
7. 1st AMENDMENT: FREE SPEECH & $POWER (Freedom of Speech, Corporate Rights, Obscenity, and the Power of Money)
8. 8th AMENDMENT: CRUELl & UNUSUAL PUNISHMENT (Rigor Mortis in Scalia’s Constitutional Prospecti)
9. 9th AMENDMENT: UNENUMERATED RIGHTS (Homosexual Sodomy and Gay Rights)
10. 5th, 8th & 14th AMENDMENTS: THE DEATH PENALTY
11. THE 14th AMENDMENT MISUSED (Bush v. Gore)
12. THE FOUNDER'S VISION & THE SCOUNDREL'S REFUGE (A decent respect for the Opinions of all Mankind...)
13. GETTYSBURG ADDRESS & CIVIL WAR AMENDMENTS (Some deeper streams of Democratic Justice.)
14. LIBERTY & THE CONSTITUTION (A Constitution whose Principles Live in the Heart of Men and Women)

FOOTNOTES
CASES CITED
BIBLIOGRAPHY: BOOKS AND ARTICLES

APPENDIX A - COMMENDATIONS FROM A JUDICIAL OPPONENT
APPENDIX B - MULTIPLE IMPLICATIONS OF WORDS IN NORMAL AND CONSTITUTIONAL DISCOURSE: A PRIMER
APPENDIX C - RATIONAL PUNISHMENT: REASON v. REVENGE (Rationales of Rehabilitation, Restitution, Retribution, Revenge...)
APPENDIX D - DEAD SPOTS IN SCALIA’S CONSTITUTION
APPENDIX E - CASUISTRY IN SCALIA’S REASONING
APPENDIX F - OPAQUE TENSIONS & STRUCTURAL CONTRADICTIONS IN SCALIA’S THOUGHT
APPENDIX G - ECCE HOMO: Behold the Man!!

For later Development:
APPENDIX R - SPECIAL FOOTNOTES (i.e. RELIGIOUS ARGUMENT [sub silentio])
APPENDIX S - SILLY SCALIAISMS
APPENDIX W - MORE GENERAL CONSIDERATIONS: BUSH v. GORE
APPENDIX X - CORPORATE $PEECH or SPEECH, MONEY, AND GREED
APPENDIX Z - FUNDAMENTAL TENSIONS AND/OR CONTRADICTIONS IN THE CONSTITUTION OF THE UNITED STATES

APPENDICES: Immoral Maxims of an Unjust Judge

IMMORAL MAXIMS OF AN UNJUST JUDGE: THE FIRST BATCH OF APPENDICES (A, B, C, D, E, F)

CONTENTS:
APPENDICES A — F
APPENDIX A: Commendations from a Judicial Opponent (3 pages)
APPENDIX B: A Linguistic Primer: Multiple Meanings of Important Words in Normal Discourse with Implications for Understanding Constitutional Discourse (10 pages)
APPENDIX C: Reason and the 4 R’s of Criminology — Rehabilitation, Restitution, Retribution, Revenge & Other Rationales of Punishment (6 pages)
APPENDIX D: Dead Spots in Antonin Scalia’s Constitution
(2 pages)
APPENDIX E: Casuistry (5 pages)
APPENDIX F: Tensions and Contradictions in Antonin Scalia’s Constitutional Views (6 pages)

FOOTNOTES (for Appendices)
CASES (for Appendices)
BIBLIOGRAPHY (for Appendices)



APPENDIX A: Commendations from a Judicial Opponent.

Giving the Devil his due...

From my own perspective, I think the opinions expressed by Justice Antonin Scalia in a number of cases are weighty and commendable and/or substantially correct or meritorious. [A-1] There are a couple of factors which make Scalia’s views in these cases particularly useful. For one, starting with the Constitutional Text and its historical, political, legal, and moral context opens up a broader field of inquiry than adhering strictly to stare decisis. Secondly, the “rights” articulated in the Constitution, particularly those in the Bill of Rights and in the Civil War Amendments, were articulated — in the main — in broad general terms which still resonate with us today. When Scalia recognizes the pertinence of these core rights in a pending case he becomes a passionate advocate for that right.

I include the following cases:

Habeas Corpus case:

In Hamdi v. Rumsfeld (2004) Scalia dissented from a contentious Court ruling which gave less than full protection to an American citizen who had been held without being charged in the Norfolk and Charleston Naval Brigs for over 2 years. Scalia noted that his opinion applied “only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court.” While Scalia — as a general rule — is very deferential to executive power in foreign policy and in (frequently) related) military actions, this was a welcome exception.

First Amendment case:

In Texas v. Johnson (1989), Scalia joined the Court in defending the right of a protester to burn the flag as an example of protected Free Speech. The Court quite properly held that the flag-burning was primarily a communicative and expressive act - rather than an act of vandalism or an immediate incitement to violence [Directed, to be sure, at a patriotic sacred cow].

Second Amendment case:

In District of Columbia v. Heller (2008), Scalia spoke for the Court in holding that the 2nd Amendment protects an individual’s right to possess a firearm in the District of Columbia. While the eloquent dissenting opinion by Stevens presented the contrary historical and precedential arguments, Scalia’s opinion is probably more in keeping with the Nation’s rough consensus that “rights” are not genuine rights if they do not have a significant individual component. Whether the Court in its ‘rightward swing” eventually ends up as a partisan arm of the National Rifle Association, however, is yet to be determined.

Fourth Amendment cases:

In Minnesota v. Carter (1998), Scalia, speaking with the Court, held that IR detector constituted an illegal search. Here, one might say, Scalia recognized the crucial and dispositive right of privacy within the home.
Likewise in Riverside v. Mclaughlin (1991) Scalia argued that leaving the presumptively innocent McLaughlin in jail for 48 hours — thus substituting ‘practical compromise’ for the clear words of the Fourth Amendment — is not ‘constitutional’. Having once spent 36 hours in a New Orleans jail on trumped up charges of “suspicious behavior” [A caucasian in the Black community], I very much appreciate Scalia’s dissent.

Sixth Amendment case:

In Maryland v Craig (1990), a case involving charges of sexual misconduct towards a minor entangled within a bitter divorce, Scalia argued that the 6th Amendment’s ‘accused shall enjoy the right... to be confronted with witnesses against him’ means exactly what it says. In his dissent Scalia argued that defendant preserve the to confront witnesses even in the admittedly difficult child molestation cases. In the atmosphere of moral panic and hysteria which frequently accompanies these cases — which have resulted in a number of innocent people receiving long sentences — a hard-nosed reality check can be crucial. Society’s predisposition to believe the worst in sexual allegations involving the weaker sex or the young is not a peculiarity of the White South of yesteryear.

Death Penalty (Amendment case):

In Ring v. Arizona (2002) Scalia concurred with a Ginsburg Court opinion which prevented a judge from applying the Death Penalty in face of a jury recommendation of mercy. Jurors are perhaps more likely to temper justice with mercy than a hardened judge who has seen too many hardened criminals to remember those who did not return to his Court because they got the message…


APPENDIX B: A LINGUISTIC PRIMER: MULTIPLE MEANINGS OF IMPORTANT WORDS IN NORMAL DISCOURSE WITH IMPLICATIONS FOR UNDERSTANDING CONSTITUTIONAL DISCOURSE.

“A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.” Oliver Wendell Holmes, Jr.

“The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.” Joseph Story, Martin v. Hunter's Lessee (1816).

Syllabus: We begin with the simplest words - concrete words with apparently obvious, well-defined meanings, and limited scope. We gradually proceed to address frequently significant complexities that are frequently attendant to our actual use of words (e.g., ambiguities, multivalency, indefinite range...). We will end our discussion with some attention to value-laden language — language which by its very nature is used and interpreted differently by different individuals and groups. To the extent possible, we will discuss these linguistic principles from a relatively ‘neutral’ perspective. Of course, in discussing value-laden language it is virtually impossible — if not actually — impossible to remain neutral. Here our standard is different. We will attempt to be fair — and, if not fair, at least rational. [F B-1]
As we proceed, we will refer to applications of these linguistic principles to Constitutional Discourse — discourse and argument about the United States Constitution and its meaning. We are not trying to offer a complete linguistic ‘guide’ to Constitutional Discourse. [B-2] What we are trying to do is make some common sense observations that may help us to focus on the actual issues that sometimes divide us. [B-3]

“Come, let us reason together.” [B-4]

We begin with the ‘simplest’ case — words or phrases whose meanings are clear and simple, unambiguous, and commonly understood with a single meaning, a univalent term with a specified range of application. [B-5] However, to get to several important linguistic issues which are entangled in some of the controversies involving the interpretation of the United States Constitution, it may be useful to proceed step-by-step to disentangle some of the complexities inherent in the general linguistic process before tackling the task of interpreting the Constitution itself. Before we address the complexities of Constitutional interpretation, we will first look at some of the inherent complexities of words in a more generalized, but less controversial context. This more neutral approach may make it easier to confront honestly and with less hypocrisy the genuine Constitutional conflicts that have arisen and will continue to arise under our Constitution. Anticipating our argument, then, we will slowly move from the realm of the relative unambiguity of pure and applied mathematics, to the complexities of the physical and biological sciences, and then further on to the sociological sciences and humanities. We will gradually move from words as used they are used in mathematics and the physical science — where there is almost always a consensus about the terms in use — to such disciplines as history, psychology, and sociology where the implied meaning of value-laden terms may become just one more feature of a controversy. Only after this, will we then turn to the issue of how we utilize such linguistic insight knowledge in interpreting the words of the Constitution. To be sure, the premise of this particular essay is not that the Constitution is replete with serious ambiguities at ever turn. Rather, our desire is to provide some guidance for interpreting those Constitutional phrases that have been most entangled in our most contentious political quarrels over the meaning of the Constitution.

In mathematical discourse and other settings involving only formally logical argument, it is often possible to proceed to reason using words and phrases whose previously stipulated definitions and meanings can be utilized without controversy by all parties in the discussion. To be sure, it is true that mathematicians and logicians usually subscribe to Gödel’s uncertainty principle, the logical-mathematical theorem that it is impossible to prove that the assumptions used in such formal arguments are internally consistent. [B-6] Still, as a practical matter, whether our discussion occurs in a children’s classroom or at an international conference, mathematical discourse involves the use of seemingly unambiguous terminology. [B-7] Words which are adopted by all parties to a conversation as having a single clear, straightforward, and unambiguous meaning I will refer to as “univocal” terms. [I need to adopt this technical word because I will shortly describe other terms with significantly different forms of “simple” meaning.]

Outside of Pure Mathematics with its corpus of acknowledgly ideal forms, [B-8] there are other contexts with a more immediate real world impact where we can quite frequently proceed to argument using agreed upon terms which — in the context of the conversation or ‘universe of discourse’ — are received as straightforward and unambiguous carriers of “univalent” meaning. Two important fields where one frequently may proceed to argument using univalent terminology are those of computer science and the physical sciences. Physicists, science teachers, and electrical engineers utilize common definitions for terms such as electron or photons. Indeed, in quantum mechanics we even hear that all electrons are “identical” in their fundamental properties. Likewise, there is virtually no argument among computer scientists about the meaning of the term “binary bit” as applied to computer memory. There are indeed a multitude of situations which we may speak of loosely as applied mathematics. In these contexts people utilize mathematical methods and accompanying univalent terminology to cope with the world. [B-9]
Outside of the physical sciences and a few smaller disciplines of formal or logical discourse, however, it quickly becomes much more difficult to have words mean exactly what we want them to mean. Even biology, with its agreed upon definitions of genus and species comes upon unanticipated situations where our seemingly straightforward linguistic categories break down. I will use a single “simple” example to illustrate my next point. If you had used the term “black swan” with European biologists several centuries ago, you would probably been laughed at. A “black swan” would have been a contradiction in terms, an oxymoron. Swans simply aren’t black — or, excuse me, they weren’t known to be black... A species of waterfowl was discovered in Australia which squawked like a swan, looked like a swan, felt like a swan, and otherwise resembled a swan, but for the fact that it had black feathers. It took a while, but eventually biologist decided to call it “Cygnus aratus” which is but the biologist’s way for calling this black bird a swan. The linguistic point I wish to make is that we can agree on what we think a word should mean, but nature can provide us with an example that may force us to change the range of application for a very carefully crafted definition which may work perfectly fine for years, decades or centuries. [B-10] There are, of course, many informal examples of biological terms commonly utilized with a variable range of applications. Thus, we usually use the word “cat” to refer to the ordinary domestic cat (genus Felis), but when we speak of “large jungle cats” we are almost certainly referring to animals such as tigers, panthers and jaguars (family Felidae). At this point, however, in spite of the fact that we may have words or phrases with variable meanings and sometimes indefinite range, we are still dealing with uses of words which are rarely sources of genuine controversy.

Constitutional Application I. Examples of practically “univalent terminology” under the Constitution (uncontested meaning).

There has never been a period in American history where there were serious legal and constitutional conflicts about the requirements that the President be at least 35 years of age, that senators be at least 30 years of age, and that members of the House be at least 25 years of age when they take office. Likewise, while there was and has been some discussion and debate about the wisdom and reach of the 26th Amendment [giving 18 years olds the right to vote], there has never been a debate about the meaning of the words “eighteen years or older.” (There are discussions and debates about whether the youngest ‘voters’ should have the right to purchase alcoholic beverages.)
* * *

At this point, [B-11] we need to once again refer to another commonplace of linguistic lore. All words have a history and it is quite clear that virtually all words have originated as metaphors. [B-12] To say that words are almost always metaphors is simply to say that words are invariably used to suggest similarities between various objects which are almost never, strictly speaking, identical. Even those words with the most commonplace and pedestrian meaning or those with a very specialized meaning within a restricted context were once metaphors. When words are later used in contexts that are remote in temporal, physical or psychological space from their origination, their usage may become quite restricted in range and/or practically unambiguous. In this case, we may prefer to think of them as frozen metaphors. [B-13] Whether a word takes on new and extended meanings or contracts into a more restricted semantic niche depends upon the history of the particular word.

Constitutional Application II. Example of a legal term given an extended or metaphorical application in a Supreme Court case.

In Minnesota v. Carter (1998) the Supreme Court ruled that police use of an infrared detector to monitor marijuana cultivation within a home violated the fourth amendment’s prohibition against unreasonable searches. In his concurring opinion, Justice Scalia wrote that inhabitants were protected against this intrusive activity — using a technology undreamed of by the authors of the 4th Amendment — because it was in effect a “search” trespassing against the protected “ right of people to be protected in their persons, houses, papers, and effects.”
* * *

However, once we move out of the narrow linguistic confines of mathematics, the traditional sciences, and a few other narrowly defined regions of inquiry, [B-14] — and move into fields with an explicitly human focus with a psychological and/or societal component, new complexities arise. The first complexity is simply that human minds are extremely complex. The fact of complexity alone increases the opportunity for words which are used to describe human activity to take on new and varied meanings — meanings which may contain connotations or even denotations which are contrary to the original thrust of a word or phrase. [B-15]

Thus it is relatively easily easy to determine that “four added to three equals seven” or that we can usually translate the English word “eight” with the German word “acht” or the Samoan word ‘valu.” However, in almost all human discourse about other topics, particularly issues that involve human actions, most assertions of ‘identity’ or ‘equality’ are really focused on a particular context or ‘universe of discourse.’ Sometimes the context is rather obvious to the participating speakers and listeners, but at other times the proper contextual referents are difficult to identify with any precision. What does it really mean, for example, to say that “All men are created equal” ?? And, if you and I both say we believe that “all men are created equal” do we really have the same belief?

But, I would argue, the complexities of human actions do not in themselves present the most difficulties in the discussions of human activity. Human beings have limited knowledge about everything in the universe. More important from my perspective, is the fact that human discourse about human affairs is almost always interested discourse — more precisely, self-interested discourse. We are invariably participants as well as observers when we discuss human events. Thus, when we discuss the “soft sciences” such as psychology and sociology or humanities such as history and linguistics value-laden terminology becomes an inextricable component of discourse. And to make matters worse, it is very difficult to admit to our own self-interest in such discussion — so difficult, in fact, that we find words like ‘hypocrisy’ and “self-deception” almost unavoidable in trying to asses such situations. In this particular instance, of course, we will need to keep this in mind when we analyze the meaning of Constitutional discourse in terms of its historical, legal, and political context.

At this point, I need to refer to another commonplace of linguistic lore. Many words posses recognizably multiple meanings. This is particularly true of our most useful words precisely because they allow us to see similarities in a multitude of contexts. [B-16]

However, in almost all human discourse about other topics, particularly issues that involve human actions, most assertions of ‘identity’ or ‘equality’ are really focused on a particular context or ‘universe of discourse.’ Sometimes the context is rather obvious to the participating speakers and listeners, but at other times the proper contextual referents are difficult to identify with any precision. What does it really mean, for example, to say that “All men are created equal” ?? And, if you and I both say we believe that “all men are created equal” do we really have the same belief?
Which leads us to my second point. Really useful words and phrases are applied to a multitude of situations — their meanings are extended. And the more they are extended, the more prone they are to embed implications that are not fully consistent with each other. This is particularly true for words used in religious, ideological, political or societal contexts. When words represent ideas and commitments which genuinely move us, they strike the core of our being and evoke images which invariably reflect the idiosyncratic features of our individual minds. This — to my mind — is not an inherently bad thing, but it does create ambiguities in the meaning of those grand and sweeping phrases that are used by large political and religious groups. In the present instance, the immediate application of this principle is to recognize is — as most scholars, lawyers, and judges do — that the Broad Terms of our Constitution as, both as originally ratified and as subsequently amended, have always contained controverted and controversial implications. Temporary general agreement and effective political coalitions have and will continue to rise, but these epistemological respites are but temporary calms in the turbulent waters of an active democracy. The illusion that our grandest Constitutional principles represent “bright line” rules with simple, direct, and unarguable implications is at best a shimmering illusion and is much more akin to fool’s gold than to a fountainhead of republican democracy. And, IF — as to frequently happens — a person or a group believes that a fusion of their simplistic or fundamentalist religious and political ideas provides an unequivocal “proper” framework from which they can force their own interpretation of democracy and justice upon the entire populace, we may have a real recipe for disaster.
Finally, the fact that different people and different parties have and continue to draw different conclusions about the meaning of the Constitution does not limit the problem of how we are to use and interpret the Terms of that Constitution. We do have both political and legal ways of addressing many of our political controversies. If we are both diligent and fortunate, under our constitution we could conceivably avoid riots, rebellions, and civil wars. I do not consider that a given. We have, after all, had a Great Civil War. However, as a general rule, if we can address our controversies without riots, bloodshed, and rebellion that would be a good thing. But the ideological conservatives have raised another storm.

Constitutional Application III. Example of a linguistically “frozen” legal term which preserves an ancient mode of expression, but continually appears in modern Constitutional Controversies.

The meaning of the odd term “cruel and unusual punishments” used in the 8th Amendment is clearly related to its appearance in the much earlier British Bill of Rights (1689) — and its meaning was not particularly controversial when the U. S. Bill of Rights was adopted in 1791. However, in the Twentieth Century the ‘proper’ meaning of the term has become part of our most contentious continuing Constitutional controversies, particularly those involving harsh criminal punishments such as the death penalty.

* * *

When it comes to fundamental religious and political ideas, it is not merely an issue of whether different people and parties have differing ideas about the Constitution’s meaning. Each of us have a multitude of complex conscious and unconscious ideas and inclinations about the various loyalties of our heart. As we live and sometimes grow, we sometimes realize that our own ideas about various matters are incomplete or even contradictory — and we change, modify or even reverse some of our previous thoughts and conclusions. This is true not only for individuals, but for societies and countries as well. To say that the Civil War Amendments and the Nineteenth amendment giving women the Right to vote were enacted because they were adopted by three fourths of the States is only the rudiments of the story. A much more accurate reading of the Country’s history is to assert that the country only slowly realized that both the Declaration of Independence and the Constitutional objective of Domestic Tranquility were inconsistent with the institution of slavery. “All White men would not be free” unless no men were enslaved. Likewise American men slowly realized that they could not live in a genuinely free country if their wives and daughters could not enjoy the blessings of liberty. All “men” cannot be free unless they walk with free women in their pursuit of life’s promise. Our understanding of the Constitution’s meaning has changed primarily, not only because we have amended the Constitution, but also because we better understand the actual Constitution that we adapted in 1788 and have amended on several occasions in subsequent years.


Constitutional Application IV. Why a Written Constitution with Broad and Sweeping Phrases with Value-Laden implications of indefinite Range might still be useful.

This author would argue that the continuing relevance of the U. S. Constitution of 1787 and its Amendments to contemporary American cultural and political life in the 21st Century is due, in part, to the broad framework of a Constitution which uses language that is in the main accessible in substance to the common man. Furthermore, such a broad framework allows some important changes to occur sub silentio as broad changes in intuitive expectations occur within the population occur that do should not, as a general rule, require a Constitutional amendment.

* * *

When Antonin Scalia argues, then, that his duty as a judge and our duty as citizens is to apply literally the Constitution’s meaning as it was adopted in 1788 and/or, on occasion, as subsequently amended, he is denying a fundamental law of human life on this planet. Each of us, consciously and unconsciously, experience changes in the way we understand our deepest beliefs. We may occasionally consciously and explicitly alter some of those beliefs, but many of the most important changes may not be in the actual words, phrase, symbol or creed which we express those beliefs. Mr. Scalia speaks publicly about his Roman Catholic faith. I hope that, privately at least, he is growing in his understanding of the injunction to love his neighbor. Likewise, Justice Scalia has accepted the role of adjudicating the meaning of that grand phrase “Equal Justice under the Law.” If neither he while sitting on the Court for over two decades nor the Country in two hundred years has not grown in its understanding of the meaning of that phrase and other similarly broad injunctions of our Constitution, then I would argue that he and those who share his beliefs have misconceived the Constitution’s meaning from the beginning. There is a single word to describe the implications of an ideology which treats the Constitution as a Pyramid or Mausoleum of frozen meanings bequeathed to us by departed souls, however noble — the word is tyranny.

A final problem with a Constitutional jurisprudence based on bright line interpretations which focus almost exclusively on the actual words of a single Constitutional phrase is that even the clearest sentence in the Constitution is hardly a stand alone verbal item. [B-17] The Constitution, of course, does contain a number of unambiguous statements. For example, the Constitution stipulates that there will ba a President, a House of Representatives, 2 Senators from each State, and a Supreme Court. However, almost all Supreme Court controversies do not involve such relatively unambiguous statements. Instead, they involve the limits of actual powers delegated or reserved to the Federal and State Presidential, Legislative, and Judicial power exercised by the President, Senators, Representatives, and Judges. And, our understanding of these terms used to delimit governmental powers are precisely those whose meanings have been altered by the two centuries of the Republic’s history. Scalia, himself, is particularly insensitive to the implications implications of the Civil War Amendments or actual contemporary problems for reading the Constitution in terms which reflect. He is particularly prone to rail with both intellectual and emotional force against the overreach of legislative powers (using the Constitutional Text of 1787); but — as I argue elsewhere in the Repartees and Appendices — he has been a passionate defender of executive overreach and a partner in the growth of judicial power in the last two decades (actual realities of his world).

DEFINITION: “Constitutional Discourse”

I use the term “Constitutional discourse” as a generic word for discussions and arguments about the proper political, legal, and/or judicial use and interpretation of the Text of the United States Constitution. In such discussions the United States Supreme Court occupies a privileged station as the designated arbiter of the legal disputes that arise under our Constitution. Under normal circumstances we expect that elected officials will honor and enforce its decisions. Even among that important minority who explicitly reserve the right to physically impede the implementation of the Court’s decisions frequently advert to the tactic of civil disobedience only as a last resort to be employed when all other approaches have been exhausted. For clarity, I should add, however, that I do not consider the Court ‘infallible’ in any sense of that word.

Appendix C: Reason and the 4 R’s of Criminology —
Rehabilitation, Restitution, Retribution, Revenge & Other Rationales of Punishment.

logos [Greek]- word; saying, maxim; fable, story; speech; thought, reason; account, consideration; calculation, proportion
ratio [Latin] - account, calculation; consideration, method; reasoning, thought

The four terms listed above, Rehabilitation, Restitution, Retribution, Revenge, — as well as deterrence and incapacitation — are frequently heard in discussions, opinions, and arguments about the acceptability, merits or constitutionality of various punishments. [C-1] A multitude of other rationalizing terms are provided to understand and/or justify society’s authority to inflict legal punishments. I, for one, presume that all of these issues are worthy of further consideration. [C-2] I personally would like to see much more national discussion of rehabilitation and restitution. At other times in our nation’s history, for example, rehabilitation has been emphasized much more prominently than it is today. Indeed, the very word ‘penitentiary’ [a place for prisoner penitence] reflects the hope and, sometimes, the reality that a prisoner can emerge from prison as a wiser person than when he or she first became an inmate. [C-3] However, my purposes here are much more limited. I wish to consider the rationality of three common justifications for legal punishments -- incapacitation, deterrence, and revenge. Once I complete that discussion, I will also consider retribution and other terms which frequently arise, but which are — I believe — essentially encompassed in our discussion of incapacitation, deterrence, and revenge.

Incapacitation, Deterrence, and Revenge

First, my fundamental assumption is that a primary purpose for legal punishment is to prevent future misdeeds by either the perpetrator of a crime or by onlookers who might be dissuaded or deterred from criminal misdeeds because the onlookers have observed that crimes have unpleasant consequences. I further assume that the primary purpose of criminal punishment is to make society-as-a-whole future safer and more secure in the future. We will examine below how there are arguable advantages to looking back at criminal behavior as well as forward. However, unless these ancillary concerns can be expected to result in less crime in the future — then to that extent that (some) punishments tend to result in additional future crime, to that extent such modes of punishment are irrational — and illegitimate. To be sure, the actual effects of the criminal justice system upon an individual receiving punishment and upon the society at large is an inherently complex set of possible affairs which is void of certainty. However, I assume that if you begin with a set of assumptions that are contradictory or unrealistic, then you will usually have worse results than if your assumptions are at least roughly consistent with your ends.

Incapacitation

The first rationale of punishment which I wish to consider is the rationale of incapacitation. If one incarcerates someone who has committed a crime that person is indeed prevented from recommitting that crime outside the prison for the duration of their prison term. Furthermore, while some prisoners may commit additional crimes while in prison, the likelihood is small — especially in a well-run prison system. Of course, if we execute someone for a serious crime such as murder we will be certain that this particular person will never recommit that crime or any other crime. However, the actual likelihood that a person who serves a long prison sentence of two or three decades will revert to serious and vicious crime once released is actually quite small. [C-4] There are, of course, good reasons why most criminal sentences are limited to some specific number of days or years. It is very expensive to keep people in prison or to execute them. While one can indeed compel prisoners to work while in prison, as a general rule running a prison is not a financially rewarding proposition per se. [C-5] We keep prisoners in prison to (putatively) prevent them from wreaking more harm in society at large. Furthermore, keeping a person in prison means that he will not make a substantial contribution to the common weal. The fact is that many prisoners do contribute to the common good after they return to society. How much we should appreciate the advantages of rehabilitation versus the disadvantages of recidivism is of course an open and disputable matter, but I will conclude here by simply stating that I accept the proposition that incapacitation is arguably a rational and morally legitimate justification for criminal sanctions, including imprisonment.
While it does not affect the incapacitation argument per se, it is important to note that if criminal sanctions are unduly harsh and/or if they punish innocent people, there are several serious harmful short-term and long-term consequences for society at large. In any case, such sanctions frequently generate bitterness in the individuals who suffer unduly harsh or untoward punishment. Furthermore, onlookers to harsh and unfair injustices lose their respect for the legal system. Of course, things can get out of hand. One reason for the 1790 executions of the French nobility and of the 1918 executions of Russian royalty were the grievances felt by the people at large towards the “ancien” regime and the Czarist regime, respectively. [C-6]

Deterrence

The second rationale for punishment which I wish to consider is the rationale of deterrence. By “deterrence” I mean simply that a punishment has a deterring effect if someone who sees the punishment of a misdeed is persuaded to avoid doing such actions himself or herself. Of course, the ‘someone’ observing the punishment may be the perpetrator himself. [C-7] There are many — all too many — variations in individual responses to criminal punishment. A fine of a few dollars, a few hours in jail, a ‘slap on the hand,” as it were, can prompt one individual to forsake for a lifetime the repetition of his or her first legal misdeed. Others can perpetrate a series of robberies and/or murders whether their crimes sprees are interrupted by prison time or not. But, usually, when we speak of “deterrence” we are referring to the effect of the punishment upon others who see the punishment being inflicted. Of course, when we say that many or even most people tend to avoid crime because they don’t want to suffer criminal sanctions (which they have either observed or heard or read about) is not saying very much. After all, if people avoid crime simply to avoid getting caught — that would still leave an enormous number of choices for misdeeds which are not legally sanctioned. Furthermore, a punishment that people sense as one that doesn’t “fit the crime” - or , worse, if an entire system of justice is seen as systematically unfair - will have harmful consequences — harmful consequences that might outweigh the advantages of “deterrence.”
As in our discussion concerning incapacitation, we can also elaborate on the merits, demerits and the limits of applicability of punishment as effective deterrence. Again, however, I will conclude by simply stating that I accept the proposition that deterrence is, arguably, a rational, morally legitimate justification for criminal punishment.

Revenge

The third rationale for punishment which I wish to consider is the rationale of revenge. By revenge I mean simply the desire by either victims or members of society to inflict pain or injury upon the perceived or imagined perpetrators of criminal misdeeds. For the nonce, I will leave unresolved the issue of whether the “pay back” is proportional or excessive. The main feature of revenge which I wish to investigate is the emotional investment which accompanies the desire or, more revealingly stated, the “thirst” for revenge. It is stated or imagined that if the culprit suffers, the observing victim or righteous citizen will experience ‘satisfaction.’ [C-8] The reader might perhaps be perplexed that I don’t consider here the term “retribution.” After all, especially in legal discourse, only a few commentators and judges extol revenge per se. Instead, they will — as in the Kennedy opinion cited in Footnote C-2 — talk about the more “measured” approach of having someone receive their “just deserts” or “a punishment which fits the crime.” And, indeed, there is indeed a rational element in a jurisprudence of retribution — an observer of retribution’s enactment may very well be “deterred” from a wrongful deed. However, when I see or hear the phrase “An eye for an eye” the phrase literally looks or sounds like a possibly measured response to a provocation. [C-9] But, in truth, when I hear people use the phrase, they are usually to justifying actions that would “paying back in kind and more —even much more." We will consider the connection between retribution and deterrence below, but we will first consider the matter of revenge.

The first thing to keep clearly in mind is that when we seek revenge we are not — as a matter of intention — trying to make the future better. It may be — as a matter of fact — that if we seek and obtain revenge, the future might turn out to be better than it would have otherwise been if we had done nothing. On the other hand — also as a matter of fact — it is rather clear that the extraction of revenge sometimes results in some very dreadful and baneful consequences. [C-10] One of the most important results from the standpoint of jurisprudence is that the desire that “someone should pay” for a crime distracts from the proper focus of a trial. The primary question for a juror should always be, “Am I certain beyond reasonable doubt that the accused did in fact commit the alleged crime?” When jurors and/or prosecutors become focused upon the “need” for someone to pay for a horrible crime, their fallible judgment is even further clouded with a predisposition for conviction. During the past two decades here in the United States it has become rather clear that the large number of definitive reversals of conviction based on DNA evidence is symptomatic of a judicial system gone awry. One primary component of the judicial imbalance, I would argue, is the prejudicial predisposition for revenge.
Thus, I would argue that fundamentally a jurisprudence of “Retribution” is a jurisprudence which combines the arguably legitimate purpose of “deterrence” with the almost invariably distorting perspective of “revenge.” One can, of course, note the historical and psychological pervasiveness of revenge in legal proceedings from time immemorial. That may give some a false sense of justifying psychological, legal, or even “religious” comfort, but it does not undo the fact that revenge-motivated punishment is not rational and it does not help to “establish domestic tranquility.” The straightforward legitimization of revenge by contemporaries such as Pat Robertson and colonialists such as Cotton Mather have been honored directly only occasionally in American jurisprudence. {Special Footnote C-1} The more diluted presence of revenge as a component of “retribution” is, however, usually accepted in American jurisprudence. Unfortunately, that continuing diluted presence of the revenge factor in our penological practice is still a poisonous component.
A jurisprudence which would defend punishment against the standard of being “cruel and unusual” solely on the basis that at sometime in our colonial or national history it has been accepted by some or many judges and/or juries is not a standard of justice — it is a standard of malice.


APPENDIX D: Dead Spots in Scalia’s Constitution

A Principle of Construction.

"In expounding the Constitution of the United States every word must have its due force and appropriate meaning; for it is evident from the whole instrument, that, no word was unnecessarily used, or needlessly added. The many discussions which have taken place upon the construction of the Constitution, have proved the correctness of this proposition; and shown the high talent, the caution and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation and its force and effect to have been fully understood.” Chief Justice Taney in Holmes v. Jennison (1816)

DEADSPOT - The Ninth Amendment.

“the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.” Antonin Scalia in Troxel v. Granville (2000)

MAXIM - The Buck Stops Here!

“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Harlan in Mugler v. Kansas (1887)


In the words at the top, Justice Taney is perhaps unusually appreciative of our Constitution. The Constitution is, after all, a human document. Still, the default assumption for Constitutional interpretation is that the judge is pledged and expected to honor the entire document. When you examine Scalia’s record, however, you find that certain portions of the U. S. Constitution are almost never utilized in Scalia’s jurisprudence. [D-1] This is particularly true for the 8th and 9th amendments.

Scalia almost invariably rejects 8th Amendment claims of ‘cruel and unusual punishments’ because he believes jury discretion is the final arbiter of what should be deemed appropriate punishment. Scalia invariably demurs or explicitly rejects 9th Amendment claims or implications because he apparently thinks a judge cannot properly ascertain [‘discover’] rights that the people have not already honored explicitly in their long and hallowed history. And at his confirmation for the U. S. Appeals Court Scalia claimed that the 10th Amendment was Constitutionally “redundant.” And there are other dead spots in his Constitutional jurisprudence. For example, there is virtually no tension in his interpretation of the 1st Amendment’s “establishment” and “free exercise” clause — the “free exercise” clause inevitably trumps the “establishment” clause. Likewise, his use of the 14th Amendment to counter affirmative action (essentially equating it with “reverse discrimination”) is historically untethered. He ostensibly believes that with the removal of de jure segregation that it is almost impossible for structural forms of racism to rise to the level of Court scrutiny. When it comes to these issues, any petitioner referring to these amendments and clauses comes to the Supreme Court one vote down. Scalia likes to talk about his ‘dead’ or ‘rigid’ or ‘unchanging’ Constitution. However, the relevant point is that for these Amendments, in toto or in part, the pages of his Constitution are essentially null and void.

Appendix E - Casuistry in the Opinions of Justice Antonin Scalia

“My only agenda is to be a good judge.”

Antonin Scalia, Before the Judiciary Committee, 1986

“I urge you then — as Hamilton would have urged you — to keep in mind that the Federal Government is not bad but good. The trick is to use it wisely.” [My Italics]

Antonin Scalia, 1982 Speech

Over two millennia ago the Greek sophists shook the foundations of philosophical thought when they began to give public displays and private advice in the art of arguing either side of an argument. Today, high school debaters and top flight lawyers are expected to be able to articulate both sides of an argument as a matter of course. In American jurisprudence the assumption is that if both parties to a legal controversy are well represented then we can be confident that a wise judge or an alert jury will reach the truth of the matter. Many observers and participants in the American legal framework are skeptical about how well the assumption works out in actual practice, but it is the underlying justifying assumption. If, on the other hand, a judge uses a particular legal argument to defend parties on one side of a political divide, but uses an essentially contrary argument to attack the parties on the other side of that divide — well, in this case, our legal system is undone. In theology and in legal jurisprudence this particular mode of reasoning is termed casuistry.

Now to be fair, none of us is fully consistent. This is not merely because we sometimes deceive ourselves, but it seems to me that is also a necessary consequence of our limited and finite minds. In any case, in a separate Appendix (Appendix F) I treat some tensions and apparent contradictions within Scalia’s thinking. In this Appendix, however, I treat what appear to be examples of transparently contradictory arguments.

INSTANCES OF CASUISTRY (below):
Habeas Corpus and Executive Power
Tolerated and suppressed religious groups
The Eighth Amendment and the Death Penalty
The Ninth Amendment and Gay Rights
The Eleventh Amendment and Sovereign Immunity

Habeas Corpus and Executive Power [4 cases noted]

With the exception of a case involving an American citizen [Yasser Esam Hamdi] held at Guantanamo, Scalia has consistently argued that the Supreme Court has no power to adjudicate the issues arising from the treatment of prisoners detained at the U.S. military base in Guantanamo, Cuba [Hamdan; Rasul; Boumedien]. One feature of his arguments have been particularly specious. Early during the Bush administration the U.S. government decided to use Guantanamo because as it was not on “American soil” it was thought that prisoners held there would beyond the reach of various legal protections — such as habeas corpus — that are usually available to prisoners, including aliens, who are held inside the United States. Of course, under the terms of the lease with Cuba, Guantanamo is totally controlled by the United States and the base has all the customary accoutrements of any “home” military base [complete with a MacDonalds and other mainland chains]. Scalia argues that the mere fact that the geographical location is outside the formal boundaries of our Country trumps the political reality that behavior at the base and treatment of the prisoners is controlled completely by U. S. soldiers following the directives of the United States President, the Secretary of Defense, and their subordinate officers. By an large, the Court itself has rejected these arguments proffered by lawyers such as John Wu and by Scalia himself, but it is amazing how vociferously Scalia has defended the use of such legal fig leafs to avoid addressing the issues presented.

The Establishment Clause: Tolerated & Suppressed Religious Groups [2 cases noted]

In our discussion of Scalia’s treatment of the establishment clause [Maxim 6], we have pointed out that Scalia seems to have a much more deferential and supportive stance in cases that involve conservative and moderately large religious groups than he does in cases, for example, that involve a small Amerindian religious group [Cf. Employment Division,... v. Smith (1990)]. Even more surprising was his long opinion (over 20 pages) in Edwards v. Aguillard (1987). In his dissent (joined only by Rehnquist) Scalia defended the right of Louisiana to require the teaching of “creation science” in biology classes as a possible alternative to evolution. Besides arguing that the Louisiana statute was “secular in nature” — utterly ignoring the loud and forcible protestations of fundamentalist religious citizens in these issues — Scalia also spent several pages in an analysis of the legislative history of the Louisiana law. Now, as a matter of fact, I believe that legislative history can be a very useful source of insight into the nature of a statute (in this case it would be to see if there was an attempt to insert partisan religious beliefs into the classroom). However, given that Scalia has frequently — especially when adjudicating Federal legislation — argued that legislative history is irrelevant to interpreting the presented issues his contrary practice here is striking. Several times he has said, “My view on legislative history is, quite simply, that it not be used as an authoritative indication of the meaning of a statute. Ordinarily, this means that it should be consulted not at all.” [E-1] Does Scalia really think that he can tack 175-180° on an issue and his inconsistency will not be noticed??

The Death Penalty [3 Cases examined here]:

In Gray v. Mississippi (1987) the Court reversed a Mississippi capital murder by holding that a juror who would had reservations about the death penalty was improperly excluded [Following the precedent of Witherspoon v. Illinois, 391 U.S. 510 (1968)]. However, when the Court in Morgan v. Illinois (1992) held that a juror who would always impose the death penalty case for capital murder was not impartial, Scalia dissented. Scalia apparently expected the Illinois juror to have an absolutely closed mind about the appropriateness of execution for all capital murderers and the Mississippi juror to have an absolutely open mind about the guilt of an accused murderer.

In Simmons v. South Carolina (1994) the Court reversed a death penalty sentence when a prosecutor called for the execution of a defendant as an act of “self-defense” while the jury was unaware that, failing execution, the defendant would remain in custody for the rest of his life. Scalia dissented, construing the term “self-defense” as a sort of generic platitude which was unrelated to whether the defendant would be on the streets or in custody. [E-2] Scalia’s obliviousness to the plain meaning of the actual words represents judging at its worst.

The Ninth Amendment and Gay Rights [1 Case examined here]:

In Lawrence v. Texas (2003), the Court struck down a Texas sodomy law. [E-3] This reversed the Court’s earlier Bowers v. Hardwick (1986) which was more in keeping with Scalia frequent publicly expressed disdain for “homosexual sodomy.” In Scalia’s dissent he argued that the Texas law applied equably to both sexes since ‘sodomy’ was proscribed for women couples as well as men couples. Scalia overlooked the fact that the Texas law did not proscribe such contact in married couples of different sex.

The Eleventh Amendment and Sovereign Immunity [2 cases]

When deciding Constitutional cases, Scalia appeals to his Jurisprudence of original and fixed meaning — the Constitution means today what it meant over 200 years ago. Or, in the case of Constitutional Amendments, the Amendments in the the Constitution mean today what they meant when adopted. Thus, the Eleventh Amendment — which limited the ability of citizens to sue states in federal courts — was adopted in 1795 and should by this logic mean today [2010] what it meant 215 years ago.
Restrictions on the power of citizens to sue their own or other governments are frequently phrased in terms of a “doctrine of sovereign immunity.” The reach of sovereign immunity is frequently debated and various court cases in local, state, federal, and international law are a rather complex mixture of competing interests. There is, of course, some rationale for limiting the number of law suits that might be filed for frivolous or mischievous ends. However, one characteristic of Scalia’s jurisprudence is that he tends to be very generous in attributing to the states various legal immunities which arise before his Court. These cases do not always gain large audiences outside the affected parties as the issues are frequently technical and not easily presented to the general public. But curiously enough, even one of Scalia’s very sympathetic commentators (Rossum, 2004) takes Scalia to task for his very expansive and non-textual opinions in Eleventh Amendment cases. [Rossum analyzes in detail Scalia’s reasoning in Pennsylvania v. Union Gas Co. and Blatchford v. Native Village of Noatak.] Personally, I am not very surprised — Scalia’s respect for his preferred subset of the “powers that be” is somewhat obsequious at times.


Appendix F - Tensions and Contradictions in Antonin Scalia’s Constitutional Views

“We know the truth not only with our reason but also with our heart.” Pascal

“Without a secure structure of separated powers, our Bill of Rights would be worthless, as the bill of many nations that have adopted, or even improved upon the mere words of ours..” Antonin Scalia, Morrison v. Olsen (1998)

“A foolish consistency is the hobgoblin of little minds.” Ralph Waldo Emerson

Opaque Tensions & Structural Contradictions in Scalia’s Thought

For the record, while it is true that many of the drafters of the original Constitution thought that the Separation of Powers would be fundamental to the protection of the people’s security and liberty, the people who actually adopted that Constitution held that a Bill of (enumerated) Rights was a sine qua non. In other words, the adopters of the original Constitution did not believe that a Bill of Rights would be a set of subordinate clauses.

For all human beings knowledge and wisdom are elusive goals. As part of our effort to be more responsible, provident and articulate we are prone to value consistency in both thought and action. We are particularly prone to expect and even demand consistency in judicial settings [“Justice should be ‘even-handed’ or ‘blind’,” we say]. A problem with this expectation, of course, is that none of us is fully consistent. There are apparently many reasons for this and there is no widespread consensus on why we can be so inconsistent at times. To initiate the discussion, I mention three reasons which I believe to be among the most important. [The reader might prefer to highlite others.] Most fundamental, it seems to me, is that however much we strive to construct consistent views and opinions about the world, a necessary consequence of our limited, finite minds is that in a human lifetime we cannot coordinate the enormous information presented us into a consistent whole. Complicating matters further, we are often aware that we cannot always articulate what we in some sense “know.” How much weight we should give to hunches and intuition is always an uncertain matter, but it seems clear that there are situations where we utilize significant, if imperfect, unconscious knowledge. Finally, to makes things worse, much worse, as inidviduals and in groups we human beings have a propensity to deceive ourselves. In any case, in a this Appendix I treat some pronounced tensions and contradictory tendencies within Scalia’s thinking which require a critical response.

Scalia has been both articulate and insistent in his support for separation of powers as the foundation of our freedom. As in the quote above he has on occasions either asserted or suggested that our most important “Bill of Rights” is the separation of powers, both thru Federalism and the three branches of government. In many ways, his approach to the Constitution and its “blessings of liberty” is similar to Alexander Hamilton’s pre-Ratification approach. So, he is particularly zealous on these matters. Indeed, probably his most lasting and sometimes useful contribution to Constitutional law has been his attempt to give clarity to the proper boundaries of the various branches of government. There are, however, some hidden tensions and even contradictions below the surface. As we move from some general considerations about separation of power, we will gradually hone in on his particular views on the relationship between executive and legislative power.

There are a number of generic issues we must consider to discover the more covert contradictions in Scalia’s methodology. For the most part, Scalia’s approach is similar to Alexander Hamilton’s pre-Ratification approach — he occasionally asserts that our most important “Bill of Rights” is the separation of powers, both thru Federalism and the three branches of government. So, he is particularly zealous on these matters. Particularly important, however, have been some of his contrary dispositions on the issues of executive and legislative power — dispositions which Scalia tends to justify in Constitutional terms. As a general rule Scalia is much more willing to trench upon legislative power than upon executive power. We can fairly characterize Scalia’s position as one that is in keeping with what, in contemporary circles, is called “the unitary executive.” We examine here with those views.


An Extended Examination of Article I in the U. S. Constitution: Scalia’s Deferential & Passive Response to the Expansion and Extension of Executive Power

When deciding cases which effect the Constitutionally appropriate reach of executive power, Scalia appeals to his Jurisprudence of original and fixed meaning — the Constitution means today what it means 200 years ago. In order to construe his opinions that are concerned with his concern for the implications of the Constitution’s ‘original meaning’ and he is likely to quote the British Judge Blackstone and the French author de Tocqueville as well as 18th Century Americans such as Hamilton, Madison, and Jefferson — especially Hamilton. And, we should also note that as a general rule, Scalia has a propensity for ‘bright line rules.’

Now, let me stipulate, I think it is both quite proper and illuminating to consider the opinions of all these persons when trying to construe the proper limits of for today’s executive power under our Constitution. But, this is a sword that cuts in more than one direction. As a prefatory consideration, we should not forget that at the Constitutional Convention Hamilton originally supported an elective monarchy. So, when Scalia argues in support of an expanding executive reach in domestic, foreign and military affairs, his failure to consider some of the Founders’ trenching stipulations is, at the least, a cause for concern.
The Constitution does put the President of the United States in the so-called “catbird’s seat,” particularly in his role as the “Commander in Chief”. However, before the Constitution defines or describes the executive power in Article II, it spends about three times as long to define and describe the legislative power in Article I of the Constitution. In particular there are extensive remarks about the conduct of war and other military operations in Article 1, Section 8. I will first select and quote some of the more familiar sections, but I then want to look more carefully at a couple of sections which are often overlooked:

The Congress shall have Power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...;
...
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
...
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
...
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions...

Nothing controversial here, but now let me highlite a couple of sections I passed over:

[The Congress shall have Power...]
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

According to our original Constitution, then, not only is the President restricted to the enumerated Powers of the Constitution, in several fundamental ways his job is to execute those powers, including the military powers, so as to hew to the path provided by Congress. Furthermore, since it is the duty of the Courts to declare the Law, we would expect a Court that is faithful to the original Constitution of the United States to watch over the activities of the United States to keep the President and his agents within the limits of the Supreme Law of the Land.

But then, you say, BUT, BUT... Well, our understanding of the Constitution has changed. For one, we have amended the Constitution - plus, such events such as our Great Civil War, World War II, and the terrorism of the 21st Century have required that we have a more powerful and more rapidly reacting President and Executive. Fine, that makes sense. But it makes sense only if you believe that the terms of the Constitution are to be interpreted in terms of their plain and pragmatic meaning for U. S. citizens of the Twenty-first Century — an approach that Scalia usually disparages as the view of a “living Constitution.”

While a more scholarly approach would necessarily have to make more distinctions in assessing the work of both Hamilton and Scalia within the context of their own times and their own development, in the context of this much shorter work of a citizen, it is worth noting that at the Constitutional Convention Hamilton originally supported an elective monarchy. Scalia, of course, has been associated with the ‘conservative’ proponents of the unitary executive — a powerful Presidency that, in the minds of many of us, would be properly described as wielding monarchial powers.
It is, one might add, much more faithful both to the Founders’ intentions and their words to remember that our Constitution was born from a struggle with a tyrannical monarch. There is neither gain nor honor in ceding legitimacy to a contemporary elected monarchy instead of the hereditary monarch of our colonial period.

So far, I have — perhaps — presented only an argument. But there is more — and, I believe, it is dispositive. Scalia has not only been an aggressive about supporting the President’s “executive” powers, he has also been equally aggressive in restricting the power of Congress — and, herein, lies our tale.

Quite frequently, Scalia will casts his argument to support the executive power in terms of Constitutional History. For the most part, Scalia appreciation is similar to Alexander Hamilton’s consistent pre-Ratification effort in support of a powerful and ‘energetic’ executive power. On the other hand, Scalia is dismissive of any interpretations based on Legislative History. Instead, he professes to be concerned about the abuses of legislative power as understood by the founders. Here, his arguments are salient — but often somewhat untethered in historical context. The Framers and Adopters of the original Constitution were indeed concerned about abuses of power by any governmental branch. However, during the first few decades of our nation’s history, relatively speaking, the legislative powers vis-à-vis executive powers were much stronger then. Today, the scales have tipped towards a more powerful executive branch. And, of course, we have a much more active judiciary — sometimes active in protecting human or civil rights and sometimes active in protecting republican and citizen property rights, but in either case always active. Scalia is frequently an active participant in the expansion of both judicial and executive power power, but he usually writes his opinions as if the only permanent issue before the Court is the extent to which the legislative branch needs to be brought to its heels. [Personally, I think Scalia’s insistence on these issues has had some useful consequences as legislators are indeed frequently ambitious for policies which do not promote either the rule of law or the public weal. Lacking an equivalent interest in checking executive or judicial excess, however, his uneven approach remains fundamentally flawed.]



FOOTNOTES; CASES; BIBLIOGRAPHY (Appendices)

FOOTNOTES (Appendices A, B, C, D, E, F):
[A-1] In my view, “meritorious” is usually a more appropriate word than “correct” which is more likely to be accompanied with a connotation of unobtained objectivity. Of course, we all have different views of meritorious.

[B-1] Allusions in the footnotes to actual cases may not be sufficiently neutral for some readers. I remember once riling a lawyer when I alluded to ‘some’ (unspecified) lawyers as ‘hired guns’ for corporations.
[B-2] A more formal definition of” Constitutional Discourse” is found at the end of the Appendix Text. There are some very fine books which make many of the points I am making in legalese or formal discourse. These include the books by Brigham (1978), Hand (1958), and Hart (1961). Essentially, without necessarily stating this explicitly, these books bring the linguistic sophistication of Chomsky and Wittgenstein and other linguistic philosophers into the discussion of Constitutional Discourse. The advantage of my own treatment here is that we get to the intractably contentious issues in only a few pages and then admit that they are contentious. A disadvantage for some is that with my own formal training in math and science we start with the most ‘logical’ issues of language first. (We also find that even the most logical and unambiguous language has hidden complexity and other pitfalls.)
[B-3] Explicitly controversial issues are, of course, are the topics of the Main Text (“The Immoral Maxims”) and some Appendices.
[B-4] As a whole this work is deliberately argumentative and even polemical in many details. However, as a point of honor I am attempting to make my most important assumptions transparent. If persons of unlike mind can undermine these assumptions, they deserve to win the argument. Failing any such resolution, we still might find ways to disagree in more amicable fashion.
[B-5] Whoa!! Isn’t this a very long sentence to say you are going to start with the simplest case. Precisely, we are going to find out that there is nothing simple about ‘clear and simple’ language. This is true even when (occasionally) we agree about the meanings of our words.
[B-6] Gödel’s proof is rather technical. A good start is the article by Nagel & Newman in Newman’s World of Mathematics. A little less recondite is Hofstadter’s Gödel, Escher, Bach. See Bibliography for details.
[B-7] Of course, it is is sometimes quite difficult to conflate these terms into a complex mathematical or logical argument. And, speaking as a retired former mathematics and science teacher, it is important to remember that there are a number of unsuspecting difficulties in learning how to properly utilize mathematical terms in their ‘received’ meanings.
[B-8] In geometry we discuss a “perfect sphere” though none of us has every seen one.
[B-9] With, of course, various levels of actual or imagined success.
[B-10] Of course, mathematical terms can be given an extended definition. For example, mathematicians have defined “hyper spheres’ which have surfaces in four or more dimensions. ( The most common equation used for a 3-D sphere is x2 + y2+z2= R2; for a 4-D sphere the equation is x2 + y2+z2+w2= R2. You don’t have to understand the equation to see some similarities.) The point here is that in this case, mathematicians can on their own volition extend their definition to meet their own needs in readily understandable discourse with other mathematicians.
[B-11] I must apologize to the impatient reader. It is simply that here (e.g., in the Appendices) I need to be a clear as I can about the assumptions that underlie the rhetorical language of this work.
[B-12] Onomatopoetic words are perhaps the only common type of words which were not, originally, ‘metaphors’ as we usually use the term. [You could, of course, consider them ‘auditory metaphors.’]
[B-13] This perspective on language was been most forcefully and persuasively argued by Friedrich Nietzsche, but it continually reappears in more pedestrian linguistic studies. A good introduction to this issue is found in Chapter 3 of Clark’s book, Nietzsche on Truth and Philosophy.
[B-14] I immediately think of such disciplines as actuarial statistics and historical linguistics, but these complexities are tangential to the line of thought of this essay.
[B-15] Even the biological complexities of the simplest creatures are beyond our usual expectations. Whether viruses are ‘alive’, whether archaic bacteria constitute delimitable species, and the extent to which defined gender or sex is a biologically meaningful category are but pointers to biological fields fraught with enormous scientific, economic, and social implications.
[B-16] A good illustration of such metaphorical creation is found in the various meanings of the words “digit” and “digital.” A doctor, is prone to use the word digit in referring to a finger, while a mathematician may refer to a “digit” as a calculating cipher [100 is a ‘three-digit number”]. Meanwhile, the younger generation is enamored of digital technology. Underlying this discussion is that as children we count on our fingers and that as adults we use machines that ‘calculate’ in computer code.
[B-17] To be sure, Scalia does argue that the Framework of Separation of Powers underlies the entire Constitution. However, even his understanding of the Separation of Powers is based primarily upon his (sometimes tendentious) reading of documents which are over 200 years old.

[C-1] While in my main argument I will not concentrate on my “4 R’s,” there is a reason so many important terms in criminology begin with the prefix “re.” Criminal sanctions are usually “responses,” actions which return or give “back” a reaction to an initial destabilizing action. [Latin prefix “re” - back, again] “Preventive justice,” of course, is not justice at all — other than, perhaps, in American jurisprudence, proper grounds for censure or impeachment.
[C-2] Kennedy’s concurrence in Harmelin v. Michigan (1991) singles out retribution, deterrence, incapacitation, and rehabilitation [all listed above] as examples of acceptable justifications for punishment. Marshall’s Concurrence in Furman v. Georgia (1972) lists six common justifications for the death penalty (retribution, deterrence, prevention, encouragement of guilty pleas and confessions, eugenics, and economy).
[C-3] Occasionally, modest efforts at restitution transpire (having the prisoner work to make conditions better for crime victims) — but such efforts have a hard row to hoe. [Part of the problem is that, historically, black prisoners in chain gangs in the American South were so cruelly and inexcusably misused.] A number of years ago I personally had an interesting experience when I lived in American Samoa — where misdeeds are punished with restitutional measures whose burdens are largely assumed by the culprit’s family.
[C-4] The serious student of capital punishment is often surprised to find that many prison wardens oppose both ‘life without parole’ and ‘capital punishment’ because of the wardens’ own discoveries that almost all people who are imprisoned for long sentences — even those who have perpetrated vicious crimes — both ‘wizen up’ with age and become less violent.
[C-5] Those systems which have tried to systematically force prisoner to pay the ‘full’ price for their criminality have been notorious in both their injustice and in their inefficiency. The segregated white South once built many of its roads with innocent or overpunished convicts. And, today, the Chinese have extracted the body parts of executed criminals…
[C-6] The large number of young Afro-American males in our prisons — well out of proportion both to the number and to the the seriousness of their crimes — is, currently, an intolerable situation. I am not making any predictions here, but — the truth will out. The consequences of such systematic injustice cannot be good.
[C-7] As some odd brew of physiological and societal factors have created a society in which most legally defined crimes are committed by men, I will mostly refer to “himself” when speaking about a generic individual. I personally would prefer the term “hemself” = “himself or herself.”
[C-8] Thus, when the State of New York reinstated the Death Penalty in the 1990’s there were exultant cheers in the State Chambers and Galleries. For those who are interesting in exploring the non-superficial aspects of retribution, Sister Helen Prejean’s Dead Man Walking provides accounts of several victims’ families who found that the execution of a murderer did not provide “closure.”
[C-9] Indeed, I remember studying the Mosaic Laws and reading somewhere that the Mosaic Code prevented the extraction of untrammeled revenge. According to the Commentators, the Mosaic Injunctions softened the penalties and practices of the day.

{Special Footnote C-1} It is hard not to note the prominent role of some religious leaders in the jurisprudence of excessive punishment.

[D-1] I say “almost never” because I do not have the computing skills and resources to determine if Scalia has actively utilized these Amendments in some minor or non-controversial cases. There is, to be sure, a case in which Scalia voted to overturn a Death Penalty case in which the judge overruled the jury. Cf. Appendix A.

[E-1] Quoted in Staab, p. 200.
[E-2] Scalia wrote, “This reference to “self-defense” obviously alluded, neither to defense of the jurors’ own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual, wherever he or they might be.” [My boldface]
[E-3] “Sodomy” in the Texas statute referred to both oral and anal sex.
[F-1] See Staab Staab, James B. (2006). The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court.

CASES CITED (APPENDICES ONLY)

Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) Scalia for the Court
Boumediene v. Bush, U.S. #06-1195 (2008) Scalia dissent
Bowers v. Harwick, 478 U.S. 186 (1986)
County of Riverside v. Mclaughlin, 500 U.S. 44 (1991) Scalia dissent
District of Columbia v. Heller, 554 U.S. ___ [#07-290] (2008) Scalia for the Court
Edwards v. Aguillard, 482 U.S. 578 (1987) Scalia dissent
Employment Division, Oregon Department of Human Resources v. Smith , 494 U.S. 872 (1990) Scalia for the Court
Furman v. Georgia, 408 U. S. 238 (1972)
Grey v. Mississippi, 481 U.S. 648 (1987) Scalia dissent
Hamdan v. Rumsfeld, U.S. #05-184 (2006) Scalia dissent
Hamdi v. Rumsfeld, 542 U. S. 507 (2004) Scalia Dissent
Harmelin v. Michigan, 501 U.S. 957 (1991)
Holmes v. Jennison, 14 U.S. 540 (1816)
Lawrence v. Texas, 539 U.S. 558 (2003) Scalia dissent
Martin v. Hunter's Lessee, 1 Wheatstone 304 (1816)
Maryland v. Craig, 497 U.S. 836 (1990) Scalia dissent
Minnesota v. Carter, 525 U.S. 83 (1998) Scalia concurrence
Morgan v. Illinois, 504 U.S. 719 (1992) Scalia dissent
Mugler v. Kansas, 123 U.S. 623, 661 (1887)
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) Scalia dissent
Rasul v. Bush, 542 U.S. 466 (2004) Scalia dissent
Ring v. Arizona, 536 U.S. 584 (2002) Scalia concurrence
Simmons v. South Carolina, 512 U.S. 154 (1994) Scalia dissent
Texas v. Johnson, 491 U.S. 397 (1989)
Troxel v. Granville, 530 U. S. 57 (2000) Scalia’s dissent
Witherspoon v. Illinois, 391 U.S. 510 (1968)



BIBLIOGRAPHY (APPENDICES):
Brigham, John (1978). Constitutional Language: An Interpretation of Judicial Decision. Greenwood Press: Westport, CT; London, England. 183 pages.
Maudemarie Clark (1990). Nietzsche on Truth and Philosophy. Cambridge University Press: Cambridge; New York; Melbourne. 298 pages.
Learned Hand (1958, 1979). The Bill of Rights. Atheneum: New York. 97 pages. {The Oliver Wendell Holmes Lectures}
Heubert Lionel Aldolphus Hart (1961). The Concept of Law. Oxford University Press: London. 262 pages.
Douglas R. Hofstadter (1980). Gödel, Escher, Bach: an Eternal Golden Braid. Vintage Books (Random House): New York.
Ernest Nagel & James R. Newman, “Goedel’s Proof” In James R. Newman, Editor (1956). The World of Mathematics, Vol. 3, pp. 1668-1695. Simon and Schuster: New York.
Helen Prejean (1993). Dead Man Walking: An Eyewitness Account of The Death Penalty In The United States. Random House: New York.
Ralph A. Rossum (2006). Antonin Scalia’s Jurisprudence: Text and Tradition. University of Kansas: Lanham, Boulder, New York, Toronto, Oxford. 298 pages.
Staab, James B. (2006). The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. Rowman & Littlefield Publishers, Inc.: Lanham, MD. 369 pages.
Ludwig Wittgenstein (1964). Blue and Brown Books. Harper and Row.

Immoral Maxim #5: Due Process of Law

Immoral Maxim & Rhetorical Repartee #5: Formal Procedures versus Duty, Substance and Reality

Constitutional Issue #5: Due Process of Law in Amendments 5 and 14:
“No person shall be ... be deprived of life, liberty, or property, without due process of law...” Amendment V.

“... nor shall any State deprive any person of life, liberty, or property, without due process of law;” Amendment XIV, Article 1.

Immoral Maxim #5:
“There is no basis in text, tradition, or even in contemporary practice ... for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” Scalia, concurring in Herrera v. Collins (1993) [F1] [F2] [F3]

A More Commendable Maxim:
“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Mugler v. Kansas, 123 U.S. 623, 661 (1887)

In my view, this and similar remarks by Antonin Scalia have rendered him morally unfit to be an Associate Justice of the Supreme Court. While it is quite true that a judge is always constrained by the laws of the society in which he or she lives, no judge has the right to simply ignore the actual facts of the case. [ F 5-4 ] Mr. Scalia did not take an oath of office to a purely formal constitution that only applies legal rules, jurisprudential formulas, and constitutional formalism to theoretical issues. The final test of any decision is not whether it was — at the time it was rendered — legally proper on its face. The final test is whether the decision and its implementation serve the real people who are both protected and punished in the actual execution of the law. Mistakes in any human enterprise are, of course, inevitable. However, one of the essential functions of our Supreme Court is to be the Country’s Court of Final Appeal. When credible and even compelling evidence of important legal error is disregarded because the Supreme Court justices believe that their important legal obligations are only the formal requirements (1) to implement traditional practices, [ F5 ] and/or (2) to adjudicate legalistic conflicts in the Courts below [ F6 ] and/or (3) to implement their particular ideology of jurisprudence [ F7 ] they have abandoned their fundamental responsibility to the People of the United States, and have substituted a mere Paper Parchment for the Constitution of the People of the United States.

There is no justification for hypothesizing that punishment of the actually innocent is a matter of legal indifference to the United States Supreme Court in a death penalty case or in any other case which the Court might consider. The very real limitations of the U. S. Supreme Court should never become a blanket excuse for judicial error, prosecutorial misconduct or other juridical error. In my view, Scalia’s statement is an example of Constitutional malfeasance. [ F 5-8 ] To celebrate the advantages of our legal system, including its formal features, is a natural — if overworked — disposition for many people including judges. However, to proudly ignore the limitations of our legal system while failing to combat them is to become a partner in tyranny. [ F 5-9 ]

Justice Samuel Chase, who served on the Court from 1796-1811, was a real rascal, aggressively pursuing Democratic Republican under the infamous Alien and Sedition Laws. But he recognized bull when he saw it. We end this section with a quote from a 1798 opinion:

“A law that punishes a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law... It is against all reason and justice for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit, of our State Government, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.” — Justice Chase in Calder v. Bull, 3 Dallas 386-389 (1798).


NOTES: Footnotes, Citations, & Bibliography

Appendix E — FOOTNOTES FOR TOPIC #5 (Due Process)
[Footnote 5-1] The full sentence: “There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the [506 U.S. 390, 428] Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
[Footnote 5-2] Scalia continues to churn up the waters. Recently he dissented in a certiorari petition with these words, “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” [Justice Scalia (dissenting), “In re Troy Anthony Davis,” a petition for Habeas Corpus granted on August 17, 2009.]
[F 5-3] The following quotation has been attributed to Scalia: “Mere factual innocence is no reason not to carry out a death sentence properly reached.” However, while this might accurately reflect the implications of Scalia’s words, I was not able to verify that these were in fact his actual words so I will not refer to them further. Sometimes Scalia looks over the cliff — and decides not to jump off.
[ F 5-4 ] More precisely, those facts of which they are aware. Facts which have not been properly presented in the legal sense can almost never be given the deference which legally determined facts are provided.
[ F 5-5 ] For example, The Supreme Court must rule on certain disputes between the States and various matters of International Law.
[ F 5-6 ] The Supreme Court does not have the time or resources to correct all errors which inevitably occur in the Courts below. Consequently, it has usually been understood that the Court should focus its energies on those errors and problems which best further the rule of law. Thus, the Court is particularly alert to cases which — while presenting similar legal issues — have been decided by different legal standards in the Appeals Courts and other lower courts.
[ F 5-7 ] This, of course, is the issue here. Scalia’s willingness to blithely ignore facts, precedents, and arguments which conflict with his own legalistic predispositions is unusual for any judge - let alone a Supreme Court justice. Roger Taney’s Dred Scott decision, Lochner, and the “Four Horsemen” of the Thirties come to my mind.
[ F 5-8 ] Impeachment or censure are political issues and require a minimal political consensus. We are not likely to achieve such a consensus in Scalia’s lifetime. However, at some point the legal historians are going to either seriously analyze the moral turpitude of Scalia’s jurisprudence or become active participants in organized injustice or tyranny.
[ F 5-9 ] Scalia’s memo to Marshall in the McClesky case [challenging racial discrimination in a Georgia death penalty case] is a striking example of such ‘principles’ in action. “It is my view that the unconscious operations of irrational sympathies and antipathies, including racial, upon jury decisions is real [and] ineradicable.” (Quote from the memo is found in in Schultz and Smith (1997), page 195.) [To me Scalia appears to be saying ‘I, Antonin Scalia, am helpless in this matter. I am only a Supreme Court Justice.’]


CASES CITED:
Calder v. Bull, 3 Dallas 386-389 (1798)
Dred Scott v. Sanford, 19 How. 393 (1857)
Herrera v. Collins, 506 U.S. 390 (1993)
In re Troy Anthony Davis, 557 U.S. ____ (2009)
Lochner v. New York, 198 U. S. 45 (1905)
Mugler v. Kansas, 123 U.S. 623, 661 (1887) [Harlan opinion]


BOOKS:
Schultz, David Andrew & Smith, Christopher E. (1996). The Jurisprudential Vision of Justice Antonin Scalia. Rowman & Littlefield Publishers, Inc.: Lanham, MD.

Immoral Maxim #6: Religious Freedom

IMMORAL Maxim & Repartee #6. Religious Freedom versus the purveyors’ of priviledge

Constitutional Issue #6. The Establishment Clause

“Congress shall make no law respecting an establishment of religion...”
[First 10 words of Amendment I, the “Establishment Clause.” [F 6-1]

Immoral Maxim #6.

“[It is] impossible to interpret the Establishment Clause in such a way as to provide no favor whatever to religion.” Antonin Scalia (1981) [F 6-2] [F 6-3]{Cf. Special Footnote VI-A}

A Most Fundamental Principle and an Honest Maxim

“Religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and this is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.” Thomas Jefferson, Virginia Bill of Rights (1776).

“[It is] idle to pretend [that] we can find in the Constitution one word to help us act as judges to decide where the secular ends and the sectarian begins in education.”
Justice Robert Jackson in McCollum v. Board of Education (1948).

While citizens of the United States are often proud of their religious freedom, there has never been a time when the meaning and scope of the “Religious Freedom” supposedly ensconced within our Bill of Rights has not been a matter of controversy. The source of that tension is readily identifiable. On the one hand, most of us believe that no person shall have special advantages because he or she belongs to a particular church, denomination, synagogue or other religious denomination. On the other hand, many members of religious groups seek to effectuate in the public, political domain what they believe to be the proper implications of their faith and beliefs. If, some of these persons will say, we have religious freedom — well, then, we have the right to openly discuss and profess our beliefs without penalty. Thus, for example, many persons point to the Civil Rights Movement, which grew out of the Afro-American churches of the American South, as a proper involvement of religion in the affairs of state. Others today think that the move to abolish abortions is a righteous and divinely sanctioned cause. In the public domain, then, we may see references to Jesus Christ or Martin Luther King in public discussions, political protest, and in acts of civil disobedience. Sometimes clouding these already contentious issues are two additional features of religious-political debates which I believe have particular possibilities for mischief and malice. One frequently hears “historical references” such as “We are a Christian Nation,” “Our nation was founded under God,” or “We are a religious people.” [F 6-4] All too often these historically articulated ‘principles’ are accompanied by aspersions on the rights and/or the actions of various religious and/or unreligious groups — Jews, Muslims, and/or atheists. Clearly, we need to approach these issues with some care.

As for the historical record, there were several ‘established’ State churches at the time of the adoption of the Original Constitution and the Bill of Rights. These establishments did not have the exclusive powers of the Church of England or of the earlier colonial churches. Nevertheless, when the Bill of Rights was adopted, several states provided financial support for the clergy of priviledged, normally protestant denominations. [F 6-5] Several other states which did not which did not favor particular denominations still barred non-Protestants or non-Christians from holding office. But the issue of direct government support for religion was in flux - Madison’s “A Memorial and Remonstrance against Religious Assssments (1785)” was widely circulated, Virginial passed its “Bill for Establishing Religious Liberty” in 1786, older establishment statutes and practices were formally or informally abandoned, and the states were including freedom of religion and disestablisment clauses in new constitutions. Over the next four decades the states gradually removed their remaining financial and doctrinal support for religious establishments. Even Massachusetts formally separated state and religion in 1833. Ideologically speaking, after two centuries the country’s religious landscape is not that different. While people continue to debate sometimes contentious issues — issues which are inevitably colored by participants’ religious beliefs —, there has been a general legal and political consensus that “freedom of religion” is not to provide any of us with preferentially favorable governmental treatment. Again, as a general proposition, many citizens will articulate Madison’s argument that — on religious grounds alone — a believer prefers a situation where his own beliefs can be accepted or rejected by others free of unholy coercion from any source.

I am myself in the main moderately comfortable with this situation. What I believe has happened is that — in the large — those of us who wish to serve Christ or The God of Abraham or Allah or Truth or our own (religious or atheistic) Free Conscience and/or Our Nation’s Honor do not seek the Aid of Caesar in getting our voice heard. Or, more specifically, we certainly do not want Caesar to aid us in having our voice drown out the voices of others. Furthermore, I would add that we had better begin to respect and hear the voices of those others with varying religious beliefs and ideologies — because if we are to survive as either a nation or as a species we must accomodate ourselves to the extraordinary diversity of beliefs and practices of those humans we encounter and affect. {Cf. Special Note VI-B}

I do not wish to overstate the case. Our ideal of religious freedom and respect for others is usually more of an Aspirational Goal or an American or Religious Dream than a fully realized institutional objective. (Cf. Special Note VI-C} Jackson's words (above) remind us that while we can separate Church and State formally and institutionally, we cannot actually separate Faith and Politics in the body politic. If either a majority or significant minority of a nation thinks its religious beliefs are politically important, those beliefs will be reflected in the nation’s political institutions. At the present time, some important ostensible indicators of Religion’s influence upon the State include the following: (A) Congress and the Court open their sessions with prayers, (B) several holidays associated with religious traditions are widely celebrated, and (C) buildings for Worship (Churches, Synagogues, Mosques) are not taxed. Currently, a very vocal religious minority wishes to outlaw abortion. An even smaller religious minority, usually working with secular allies, is trying to abolish the death penalty. In this short space, I do not wish to propose a general solution to these issues because (1) I do not have a general solution, (2) even if the country reaches a rough consensus on some state-and-religion issues, other controversies will arise, and (3) I find that very reasonable persons of good will cross mental swords over religious-political issues. [F 6-6] {Cf. Special Note VI-D} However, I am confident enough to say that I am particularly upset and angered by the rhetoric of Antonin Scalia which is so frequently used to preferentially advantage the partisan interests or ideologies of our larger religious ‘publics’ against the interests of our smaller religious groups. [F 6-7] Antonin Scalia has managed to convince himself that he should work to secure preferential treatment for his political-religious ideology. As he speaks and writes with such self-confident flair that others who are waiting to have their own preferential predilections validated become enthusiastic admirers. Before getting to the issue of the defects of his views on Separation of Church and State or the Establishment Clause it would be helpful to look at some historical matters.

“Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The Northwest Ordinance, July 23, 1787

In 1787 religious institutions provided most of the educational opportunities in the former colonies. Religious institutions have continued to promote educational and charitable ends which promote the public good. {Special Footnote VI-E}. When tax exemptions for Churches were challenged in the Walz v. New York Tax Commission (1970), Warren Burger note that New York “has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups.” So, there is not much new here.

Scalia, then, can find examples of religious belief, piety, bigotry or zeal during the epoch of the ratification of the First Amendment. However, there is no tension - no intellectual honesty - in his approach. He has very little appreciation for Madison’s A Memorial and Remonstrance Against Religious Assessment:

"We hold it for a fundamental and undeniable truth, 'that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. ... We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance."

Scalia simply cannot countenance Thomas Jefferson’s [F 6-8] “Wall of Separation between Church and State” or Hugo Black’s use of this principle. [F 6-9] He continually refers to the positive effects of religion — coveting, as it were, preferential treatment for his ‘principles’ — but we hear precious little about the misuses of religion which were clearly on the minds of many Framers and Ratifiers of OUR CONSTITUTION and OUR BILL OF RIGHTS.

Scalia is well known for his criticism of the “Lemon Test” articulated by Chief Justice Warren Burger in Lemon v. Kurtzman (1971). In Scalia’s concurrence in Lamb’s Chapel v. Center Moriches (1993) he invokes an image of the Lemon Test as a “Ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after repeatedly killed and buried.” [F 6-10] The histrionic passage is given a great deal of coverage by Scalia’s admirers, but the substance of Scalia’s remarks is rather thin. What Scalia has siezed on is that the various justices with whom he was sitting had used the Lemon precedent in several cases, but not always enthusiastically or with complete consistently. That is to be expected. Just like Scalia, the other justices have also developed their own jurisprudence over time according to the dictates of their consciences. Furthermore, unlike Scalia, the other justices are not as inclined to be searching for one more opportunity to fully explore their own agenda. Burger’s criteria have been a useful starting point for several of the justices on several occasions, but these criteria do not dispose of the inherent difficulties of Religious establishment clauses. Every generation seems to have a couple of cases which have appeared to be quite similar in their impression on the general public, but which are distinguished in the Court’s final judgment.
In the post-World War II period the Court allowed the use of public funds to support transportation to parochial schools in Everson (1947) and allowed students to receive religious instruction outside the school during school hours in Zorach (1952), but prohibited the use of religious teachers in public classrooms in McCollum (1948) and prohibited prayer in the classroom in Engel v. Vitale (1962). A generation later in Lynch v. Donnely (1984) the court allowed the city of Pawtucket to display a nativity scene during the Christmas holidays, but 5 years later in Allegheny Co. v. ACLU (1989) the court found that a somewhat similar crèche display violated the “establishmnent clause.” In the last decade, the court in Van Orden v. Perry (2005) by a 5-4 vote allowed the state of Texas to continue displaying on the grounds of the state capitol in Austin a monument with the Ten Commandments engraved on it. However, in a companion case, McCreary County v. ACLU (2005), the Court banned a courthouse display of the Ten Commandments in Kentucky. Part of the differences in outcomes of these and similar cases during the past several decades is due to different approaches of different judges and the cases themselves have significant differences. However, one constant theme of the majority opinions is that several Justices are usually quite resistant when the hand of public officials is openly or, worse, secretly involved in pushing a partisan religious symbol into a new venue. Where exactly to draw the line between “an establishment” and an acceptable public expression of religion is an issue which each justice tends to approach somewhat differently.

In Scalia’s dissent in McCreary County he writes that “the Court acknowledges that the ‘Establishment Clause doctrine’ it purports to be applying ‘lacks the comfort of categorical absolutes.’ What the Court means by this lovely euphemism[my boldface] is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not.” Scalia’s disparaging and distorting simplification of the issues lacks judgment, subtlety, and humility. Entering in where angels fear to tread, Scalia’s insistence that there is a bright-lined clear and single identifiable correct meaning in many of these Constitutional disputes about religion is often intellectually naive, morally offensive, and religiously shallow.


FOOTNOTES; CASES; BOOKS (Religious Freedom and the Establishment Clause)

FOOTNOTES

Footnote 6-1. Ratified Dec, 15, 1791.
Footnote 6-2. Antonin Scalia, Speaking to Subcommittee on Taxation, and Debt Management in 1981. Cited on page 32 of Brisbin (1997).
Footnote 6-3. Similarly, “ Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. (Antonin Scalia, dissenting in McCreary County v. ACLU of Kentucky (2005).
Footnote 6-4. The “We” here usually means either a majority of U.S. citizens or some favored subset of the same.
Footnote 6-5. Which denomination or denominations were favored varied with the particular state.
Footnote 6-6. I do not mind saying that, as a general rule, I am very critical of those who spend most of their political capital on behalf of the unborn while making powerful political alliances with those who are largely indifferent to the needs of the poor, the weak, and the strangers among us who have already been born. Cf. SPECIAL FOOTNOTE VI-C for more explicitly religious criteria.
Footnote 6-7. Technically, Scalia favors majoritarian or large minoritarian religious publics, including his own religious flavor of Roman Catholicism.
Footnote 6-8. From Jeffferson’s letter to Danbury Baptists (1802) - “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.” [boldface supplied by LCHj]
Footnote 6-9. Hugo Black’s Opinions in Everson v. Ewing Board of Education, (1947); Engel v. Vitale (1962); and Abington Schools v. Schlempp (1963) were enormously important in establishing Supreme Court interpretations of the meaning of religious freedom and the establishment clause for the entire second half of the 20th Century.
Footnote 6-10. The “Lemon Test” stipulates that constitutionally acceptable laws trenching upon religious practice (1) should have an identifiable secular purpose, (2) should neither advance nor inhibit religion, and (3) should not involve excessive entanglement by the state into religious affairs.
Footnote 6-11. There are a number of books with a well-defined point of view on the First Amendment religious establishment clause. I myself am quite partial to Derek Davis’s 1992 book. However, the 2007 book by Peter Irons (God on Trial) does a good job of presenting the various parties and is a good place to start exploring such cases. This is in spite of the fact that he has been a litigator in the Mount Soledad Cross controversies of San Diego. See Bibliography.

{Special Footnote VI-A} [“And when thou prayest, enter into thy closet, and when thou has shut the door, pray to thy Father which is in secret...” KJV]
But thou when thou shalt pray, enter into thy chamber, and having shut the door, pray to thy Father in secret: and thy Father who seeth in secret will repay thee. Douay-Rheims Bible
Jesus of Nazareth, Matthew 6:6
{SPECIAL FOOTNOTE VI-B } In religious terms, in both the strangers and neighbors of our world, God has presented us all with a “Coat of many Colors”
{SPECIAL FOOTNOTE VI-C } The United States is my present Home. I was born here and expect to die here. It is, however, but one of many Homes on God’d Green Earth. It is certainly not the Beloved Community.
{SPECIAL FOOTNOTE VI-D } The Christian standard for justice tempered with mercy, I believe, is best articulated in Matthew 25: 35,36: “For when I was hungry, you gave me food; when thirsty, you gave me drink; when I was a stranger you took me into your home, when naked you clothed me; when I was ill you came to my help, when in prison you visited me.” [NEB] Others may have a different reference and all of us have fallen short. However, as Christian believers we certainly must not be traveling in the other direction. Both Jewish and Christians are frequently drawn to Micah’s short phrase, “What does the Lord require of thee, but to do justice, love mercy, and walk humbly with thy God?”
[Special Footnote VI-E] As a liberal protestant in the Quaker tradition I have no reluctance about praising the work of Roman Catholic nuns in poor urban neighborhoods nor in praising the work of religiously conservative members of the Salvation Army in feeding and housing the poor. I myself have been housed and fed at a Salvation Army Center. I do not subscribe to the political agenda of the religious right, but I certainly believe that faith-based institutions can serve the public good. Properly vetted, it seems to me that faith-based charities could be and, indeed, sometimes are proper channels of public funds. {There continue, however, to be too many instances of 'bad faith' in various settings in which toleration of other religions and atheism is not practiced.}

CASES CITED
Abington Schools v. Schlempp, 374 U. S. 203 (1963)
Allegheny County v. ACLU, 492 U. S. 573 (1989)
Engel v. Vitale, 421 U. S. 370 (1962)
Everson v. Ewing Board of Education, 330 U. S. 1 (1947)
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)
Lemon v. Kurtzman, 403 U. S. 602 (1971).
Lynch v. Donnely, 465 U. S. 668 (1984)
McCollum v. Board of Education, 333 U.S. 203 (1948)
McCreary County v. ACLU of Kentucky, 545 U.S. 845 (2005)
Van Orden v. Perry, 545 U.S. 677 (2005)
Walz v. New York Tax Commission, 397 U. S. 664 (1970)
Zorach v. Clausen, 306 U. S. 343 (1952)

BIBLIOGRAPHY
Davis, Derek (1991). Original Intent: Chief Justice Rehnquist and the Course of American Church/State Relations. Prometheus Books: Buffalo, New York. 202 pages.
Irons, Peter (2007). God on Trial: Dispatches from America’s Religious Wars. Viking Penguin Books: New York. 362 pages.