Immoral Maxims of an Unjust Judge (Footnotes)

IMMORAL MAXIMS: FOOTNOTES
{Enumeration as of June 27, 2010} [Topics 11-14 are unimplemented]
This posting has the large majority of footnotes for the 14 Posted Immoral Maxims (of Antonin Scalia).
The Maxims are also given individual Postings with both footnotes & citations.

TOPIC #1. THE COVENANT
[FOOTNOTE 1-1] Boldface in quotes at the beginning of each section, unless otherwise noted, are supplied by LCHj.

[FOOTNOTE 1-2] Scalia allows that the Prologue is aspirational, but characterizes the rest of the Constitution, including the Bill of Rights, as a set of operational provisions that are best read as positive stipulations essentially devoid of indeterminative or incomplete meaning.

TOPIC #2. THE OATH
[Footnote 2-1] - I write ‘presumably’ because I would guess that Scalia would have used the term ‘swear’ instead of ‘affirm.’ Furthermore, I am personally unaware of whether he has a middle name or would have used one in this context.
[Footnote 2-2] In Appendices D, E, and F these issues are explored in more detail.
[Footnote 2-3] ibid.

[Special Footnote 2-1] Of course, Jesus is recorded as saying that “the poor are with you always.” In Jesus’s case, however, his acknowlegment of political and social realities was accompanied by a life that was very much focused on the physical and spiritual needs of the poor.

#3. THE TEXT OF THE CHARTER
[Footnote 3-1] The first quote is from Atkins v. Virginia (2002). The second part is but one of many amplifications he has given later. It is from a 2008 speech at Thomas Jefferson High School in Alexandria, Virginia.
[Footnote 3-2] SCALIA elaborates, “Much of the harm that has been done in recent years by activitist Constitutional intepretation… is made possible by a theory which says that, unlike an ordinary law, which doesn't change -- it means what it meant when it was enacted, and will always mean that -- unlike that, the Constitution changes from decade to decade, to comport with... quote "the evolving standards of decency that mark the progress of a maturing society".”
[Footnote 3-3]
The political subtext is that Scalia believes that this is the particular provenance of liberal judges whose activism was most egregiously exemplified by the Warren Court and the later Roe v. Wade decision. Two books which discuss Scalia’s arguments in detail are Scalia’s A Matter of Interpretation: Federal Courts and the Law and Steven Calabresi’s Originalism: A Quarter-Century of Debate. Both books contain long arguments by Scalia plus commentary and criticism.
[Footnote #3-4] Learned Hand (1958). The Bill of Rights.
[Footnote #3-5] The British system can be characterized as leaving Parliament as the final arbiter of Constitutionality. However, recourse to either a final legislative or executive arbiter as the final governmental arbiter has never been a viable prospect for Americans.
[Footnote 3-6] Scalia’s terms is “A law of rules” as [constituting the fundamental requirement for establishing] the ‘rule of law.’
[Footnote #3-7]. Some rather neutral linguistic considerations are provided in Appendix B - THE MULTIPLE IMPLICATIONS OF WORDS IN ORDINARY AND CONSTITUTIONAL DISCOURSE: A PRIMER. On the other hand, Appendices D and E are explicitly polemical counters to Scalia’s holdings.
[Footnote 3-8]. Appendices D and E explore some Scalia opinions rooted in a flawed use of purported “simple” or “obvious” rules of interpretation which violate fundamental usages of language. Scalia’s holdings in the instances cited in these Appendices are perceived here as representing persistently unwarranted templates for injustice. Obviously, the reader may or may not agree with either Scalia or the author. However, the author believes that he [LCHj] is placing his actual operative principles on record — and this should, at a minimum, make for a more honest debate.
[Footnote 3-9] Indeed, during the Ratification debates Edmund Randolf objected strenuously to some of these terms precisely because they had such far reaching and uncertain controversial implications.
[Footnote 3-10] To be sure, there have always been justices and scholars with methodologies similar to Scalia’s. To wit: “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.” — South Carolina v. United States, 199 U.S. 437, 448 (1905). Examined more closely, however, any intellectual safety in such approaches of ‘originalism’ and ‘a jurisprudence of original intent’ evaporates as we shall see below. Even Dred Scott (1857) was purported to be a (mere) excercise in fidelity to the Founder’s words and intentions.
[Footnote 3-11] Ample evidence for my assertions are provided in Levy’s Original Intent and the Framers’ Constitution. For starters, on occasion both Hamilton and Madison (separately) during subsequent political debates might adopt either restrictive or broad interpretations of various clauses at variance with previous statements which they had made at the convention, in The Federalist or in governmental affairs. See the Bibliography.

TOPIC #4. THE FOUNDER'S CONSTITUTION AND OUR CONSTITUTION
[F 4-1] Re: The enumeration of slaves — “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” (Article I, Section 2)
Re: Runaway slaves — “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (Article IV, Section 2)
[F 4-2] To begin with, if a case can be definitively decided by ‘simply’ inquiring as to (A) “What does the Constitutional text say?” and (B) “How did the Framers interpret the Text when the clause or amendment was adopted?”, then the case is not likely to get pass the lower Courts. Even if such a case were to reach the Supreme Court, it would normally be one of those “non-controversial” 8-1 or 9-0 decisions. More frequently, a contemporary case may be decided by referring to an opinion or approach consonant with the views of an important subset of Framer opinion. Thus, religion cases from the 1940’s to the 1970’s contained frequent references to Madison’s Remonstrance and Thomas Jeffferson’s & letter . The Conservative justices of today’s court (esp. Scalia and Thomas) avoid references to Jefferson’s phrase “wall of separation” like the plague. They will occasionally refer to some of Madison’s or Jefferson’s political statements about religious holidays, but their opinions are much closer to those of John Adams, Joseph Storey, and other religious conservatives than to the core beliefs of, say, Madison, Paine, or Jefferson.

TOPIC #5: 5th & 14th AMENDMENTS: Due Process of Law
[Footnote V-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 V-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 V-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 V-4 ] More precisely, those facts of which they are aware. Of course, significant — or even dispositive — facts which have not been properly presented in the legal sense are frequently ignored and they are almost never given the deference which properly presented legally determined facts are provided.
[ F V-5 ] For example, The Supreme Court must rule on certain disputes between the States and various matters of International Law.
[ F V-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 V-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 Tawney’s Dred Scott decision and the “Four Horsemen” of the Thirties come to my mind.
[ F V-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 tyranny.
[ F V-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.’]


6. 1st AMENDMENT: The Establishment Clause N=9 + 4 special footnotes.
[Footnote VI-1] Ratified Dec, 15, 1791.
[Footnote VI-2] Antonin Scalia, Speaking to Subcommittee on Taxation, and Debt Management in 1981. Cited on page 32 of Brisbin (1997).
[Footnote VI-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 #VI-4] The “We” here usually means either a majority of U.S. citizens or some favored subset of the same.
[Footnote #VI-5] Which denomination or denominations were favored varied with the particular state.
[Footnote VI-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 VI-7] Technically, Scalia favors majoritarian or large minoritarian religious publics, including his own religious flavor of Roman Catholicism.
[Footnote VI-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 VI-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.

{SPECIAL FOOTNOTE VI-A } 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-B } 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-C } 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
[Special Footnote VI-D] 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 often serve the public good. Properly vetted, it seems to me that faith-based charities could be proper channels of public funds.


TOPIC #7. 1st AMENDMENT: Freedom of Speech & The Power of Money
[ F 7-1 ] Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); McConnell v. Federal Election Commission, 540 U.S. 93 (2003); and Citizens United v. Federal Election Commission, No. 08-205 (2010).
[ F 7-2 ] Caperton v. A.T. Massey Coal, 556 U.S ___ [No. 08-205] (2009)
[F 7-3] See the Austin quotation introducing this section. Cf. Footnote 4 also from Austin.
[ F 7-4 ] Elsewhere in Austin Scalia adds, “Ah, but then there is the special element of corporate wealth: What would the Founders have thought of that? ... Tocqueville wrote in 1835:
‘ When the members of an aristocratic community adopt a new opinion or conceive a new sentiment, they give it a station, as it were, beside themselves, upon the lofty platform where they stand; and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around. ... associations ought... to stand in lieu of those powerful private individuals whom the equality of conditions has swept away.’
... It is important to the message that it represents the views of Michigan's leading corporations as corporations, occupying the "lofty platform" that they do within the economic life of the State - not just the views of some other voluntary associations to which some of the corporations' shareholders belong.”
If you read carefully what Scalia writes you see that he trenches very close upon the proposition that “What is good for the [Michigan] Chamber of Commerce is what is good for the United States.”
[ F 7-5 ] Scalia might reread Charles Beard’s An Economic Interpretation of the Constitution of the United States (1913). I wouldn’t expect him to accept Beard’s thesis that “the structure of the Constitution of the United States was motivated primarily by the personal financial interests of the Founding Fathers.” [Wikipedia]. For the record, neither do I. But it would be helpful if he tempered his Ann Ryan fantasies with a touch of reality.

{Special Footnote 7-A} Presumably speaking in metaphor himself, in Matthew 19:23-24 Jesus is quoted as saying, “Amen, I say to you, that a rich man shall hardly enter into the kingdom of heaven. And again I say to you: It is easier for a camel to pass through the eye of a needle, than for a rich man to enter into the kingdom of heaven.” Douay-Rheims Translation.


Topic # 8. THE EIGHTH AMENDMENT: Cruel & Unusual Punishments
[Footnote 8-1] Scalia does from time to time allude to past barbarities which he would (probably) vote to overturn, but it usually has very little relevance to the classes of cases which he considers as a Supreme Court justice.
[Footnote 8-2] See Appendix D - “Crime and Punishment: Reason versus Revenge” for further discussion.

[ Special Footnote VIII - 1] And Pilate seeing that he prevailed nothing, but that rather a tumult was made; taking water washed his hands before the people, saying: I am innocent of the blood of this just man; look you to it. Matthew 27: 24 (Douay-Rheims Bible)
[ Special Footnote VIII - 2] “And the LORD said. “You pity the plant for which you did not labor, nor did you make it grow, which came into being in a night. And should not I pity Nineveh, that great city, in which there are more than a hundred and twenty thousand persons who do not know their right hand from their left, and also much cattle.” Jonah 4: 10-11. (RSV)


Topic # 9. 9th AMENDMENT: Unenumerated Powers & Gay Rights

Topic # 10. The Death Penalty AND AMENDMENTS 5, 8, & 14.
[F 10-1] A little more revealing of some inward and usually unexpressed complexities is his dissent in Booth v. Maryland (1987) which — until overturned a few years later — banned victim impact statements from death penalty sentencing procedures. “Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court.”
[F2] See Repartee #8. Some exceptions are noted in Appendix A.


TOPIC # 11. THE 14th AMENDMENT MISUSED: Bush v. Gore (2000)
TOPIC #12. THE FOUNDER'S VISION AND OUR WORLD
TOPIC #13. THE GETTYSBURG ADDRESS & THE CIVIL WAR AMENDMENTS
TOPIC #14. LIBERTY & THE CONSTITUTION

SPECIAL RELIGIOUSLY ORIENTED FOOTNOTES FOR APPENDICES

APPENDIX A - COMMENDATIONS FOR A JUDICIAL OPPONENT
APPENDIX B - MULTIPLE IMPLICATIONS OF WORDS: A PRIMER
APPENDIX C - RATIONAL PUNISHMENT: REASON versus REVENGE
APPENDIX D - DEAD SPOTS IN ANTONIN SCALIA'S CONSTITUTION
APPENDIX E - CASUISTRY IN ANTONIN SCALIA'S 'JURISPRUDENCE.'
APPENDIX F - TENSIONS AND CONTRADICTIONS IN SCALIA'S USE OF THE CONSTITUTION
APPENDIX G - ECCE HOMO
APPENDIX S - SILLY SCALIAISMS