Immoral Maxim #7: Freedom of Speech & $talk

Maxim #7: Freedom of Speech, Corporate Rights, Obscenity, and the Power of Money.

From Amendment I: “Congress shall make no law ... abridging the freedom of speech, or of the press...” (1789)

“...To eliminate voluntary associations [e.g., corporations] - not only including powerful ones, but especially including powerful ones - from the public debate is either to augment the always dominant power of government or to impoverish the public debate.” Antonin Scalia in Austin v. Michigan Chamber of Commerce (1990).

“Money doesn’t talk, it swears!” (Bob Dylan)

Also in Austin, Antonin Scalia contends that the corrosive and distorting effects of immense aggregations of wealth [i.e., corporations] upon the political debate is “poetic metaphor.” I can almost hear John C. Calhoun describing abolitionist literature criticizing the whip and the lash of slavery as ‘poetic metaphor’ undermining the civilizing effects of Christianity. [LCHj]

Both in the majority and minority Scalia has argued in a number of cases that corporate spending on political speech is essentially a form of protected political speech. [F 7-1] Whether in dissent or in the majority he has almost always argued that campaign finance laws should be further restricted or overturned. In a related case, Caperton v. A.T. Massey Coal (2009), he found no reason to require a West Virginia judge to recuse himself from a case involving a campaign contributor whose single contribution of well over $2,000,000 exceeded the spending of all other contributors combined.[F 7-2] Scalia has even suggested that those who are wealthy should be encouraged to have additional influence precisely because they are wealthy.[F 7-3], [F 7-4] Unfortunately, once Scalia embarks on one of his attempts to rhetorically frame an issue which he feels passionately about, he frequently loses contact with reality. Thus, again in Austin, Scalia contends that “the corrosive and distorting effects of immense aggregations of wealth” [i.e., corporations] upon the political debate is “poetic metaphor.” Pure nonsense. Greed is, according to the Roman Catholic faith that Scalia professes to believe, is one of the seven deadly sins. More importantly, with decisions like Dred Scott, Lochner v. New York (1905), and Adkins v. Children’s Hospital (1923) in the Supreme Court’s own résumé, it is clear that our Supreme Court has, all too often, viewed the political scene thru a pronounced plutocratic lens. Slavery, child labor, 80 hour weeks, workplace injuries and deaths, and — today — environmental degradation have all been empowered — sometimes for decades — by decisions of the Supreme Court which have cloaked entrenched interests with a sheen of legal respectability. {Special Footnote VII-A} Scalia’s fundamental propensity in campaign finance controversies is to reduce legitimate governmental monitoring of corporate wealth to (1) prosecuting individuals’ fraud and to (2) requiring (some) transparency in the sources of campaign contributions. His glaring lack of institutional self-awareness is unusual even for a judge.
Scalia’s well-funded defenders within the corporate world appreciate his articulate and sometimes telling critique of self-serving governmental interests or competing private interests which are either evident or hidden within legislative attempts to control the spendings of lobbyists and corporations. I appreciate some of his arguments as well. Fine! However, Scalia should not be a simple advocate for the wealthy and/or the powerful or some subset thereof. Of course, the wealthy always help to write the laws so that the hands of any judge are always partially tied. However, one does not need to be a radical, a Marxist, or a socialist to recognize that the ambitions of the wealthy can be as devastating as the ambitions of the politically powerful.[F5]

Scalia is, of course, not alone in his infatuation with unchecked corporate speech. This propensity to view corporate speech as unrelated to issues of fundamental justice involving the potential influence of money has recently reached its expression in Citizens United v. FEC (2010), an opinion which Scalia joined. In the majority opinion authored by Justice Kennedy, the Court struck down a number of constraints on campaign spending by corporations, holding that the political speech of corporations [e.g., campaign advertising] should be construed as the protected political speech of persons. In the majority opinion, important components of Scalia’s dissents in Austin and McConnell, are incorporated. We touch on some of these broader issues in Appendices X and Z.

Scalia, his Supreme Court compatriots, and the body politic need some sharpening of their sensibilities when it comes to the inordinate power of greed in American politics and ideology. I suggest two metaphors for additional consideration. We know that our rights of free speech do not allow us to use a megaphone to drown out other speech in either the public square or in peoples homes. Yet as a society we allow misleading and oversimplifying news, TV, and radio ads to “frame’ the political debate whenever entrenched economic interests and priviledges are challenged. Thus, truthful political speech, pertinent facts, and much honest debate is drowned out. [F 7-6]
We also know that the manure from a 100 acre nineteenth century farm was not, in most cases, a danger to the water supply down stream. However, the runoff from chicken manure from a 100 acre twenty-first century chicken farm which houses a 100,000 chickens can be a public hazard. As citizens we are continually exposed to arguments which distract the public from action to prevent the pollution from such farms — and from other industries which spill their chemicals into the lakes and streams and their oil into the oceans. To be sure, remedies for new hazards of emerging technologies is itself an emergent art and no remedies are possible unless the public informs itself and involves itself in public justice. [F 7-7] Progress on these matters is an inter-generational struggle. Still, there is one important principle which needs to be articulated. Spokepersons, advertisers, paid commentators, lawyers, and — yes — Supreme Court justices who become hired guns, hired speakers, and/or hired writers for the polluting effects of the overendowed and undeservingly rich and powerful are frequently engaged in an obscenity much more harmful to the public good than any porn shop.





FOOTNOTES; CITATIONS; OTHER NOTES

FOOTNOTES
[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. As it is, his ideological confusion of individual liberty with entrenched corporate interests gives Marxist critiques of the American economic-political mystique a coherence and traction which they usually lack.
[F 7-6]. In this context it is important to remember that the most important political falsehoods are frequently half-truths used to deflect essential defects of political
[F 7-7]. To be sure, the non-informed and uncommitting public makes itself prey to cheap reforms which do not address fundamental underlying issues.

{Special Footnote VII-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.

Cases Cited:
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)
Caperton v. A.T. Massey Coal. et al., 556 U.S ___ [No. 08-205] (2009)
Citizens United v. Federal Election Commission, No. 08-205 (2010)
*Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819)
*First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)
McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

Immoral Maxim #8: Cruel & Unusual Punishment

Maxim # 8: Cruel and Unusual Punishment: Rigor Mortis in Scalia’s Constitutional Prospecti

Amendment VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
(Ratified Dec 15, 1791)

“Since it has been the traditional practice of American courts to leave punitive damages ... to the discretion of the jury; and since in my view a process that accords with such a tradition and does not violate the Bill of Rights necessarily constitutes "due" process; I would approve the procedure challenged here without further inquiry into its "fairness" or "reasonableness." Antonin Scalia in Pacific Mutual Life Insurance Co. v. Haslip et al., (1991)

“A punishment which is considered fair today may be considered cruel tomorrow... More than any provision in the Constitution, the prohibition of cruel and unusual punishment depends largely, if not entirely, upon the humanitarian instincts of the judiciary. We have nothing to guide us in defining what is cruel and unusual apart from our own conscience.” Justice Frank Murphy, Louisiana ex rel. Francis v. Georgia, Texas, Florida (1947)

I myself very much appreciate the spirit of Justice Murphy’s comment in Louisiana ex rel. Francis (1947). However, I think it would be more accurate to say that in 8th Amendment cases the Court often has to carefully and conscientiously consider the contrary implications of the Constitutional text, our legal precedents, and the country’s history. All of these sources of judicial reasoning — text, precedent, and history — are replete with contrary and controversial implications. And, in these instances, the decisive component of a judicial decision may very well be — as it should be — the judge’s informed conscience. As a further realistic caveat, it should be remembered that judges are generally and constitutionally hesitant in temperament and conservative in practice. There have always been a few judges — John Marshall Harlan, Brandeis, Brennan, and Thurgood Marshall — who have been ahead of the body politic, but as a class judges tend to be both temperamentally and intellectually either moderate or conservative. With these caveats, let us bear down directly upon Scalia’s interpretation of the Eight Amendment. We deal here with the general issue of cruel and unusual punishment as it effects both capital and non-capital punishment. However, we will deal with some additional particulars of death penalty jurisprudence in Repartee #10.

Scalia’s opinions in Eight Amendments are guided ab initio by four glosses which he places upon the Constitutional words. These four glosses are inherently narrowing, conservative, controversial, historically suspect and, at times, — I would argue — terribly mistaken. Scalia argues and insists that (1) the phrase “cruel and unusual” is to be read as “both cruel and unusual,” (2) the term “unusual” is to be read as a close synonym for “illegal,” (3) jury discretion is justiciably unreviewable, and (4) excessive or “disproportionate” punishments are not Constitutionally “cruel and unusual.” In addition to these four glosses, Scalia’s reading of our own eight Amendment is guided primarily by a historical analysis that is singularly focused upon the case of one Titus Oats and the English Parliament's reaction to this case. There appears to be little doubt that this case was indeed a spur to the political reforms which resulted in the English Bill of Rights of 1689. That the English Parliamentary act of 1689 represents, however, a fixed national consensus upon the meaning of the term “cruel and unusual” in the United States of 1791 — when the country’s jurisprudence was in a state of flux — strains my imagination.

Gloss #1 - Is “cruel and unusual” an exact synonym for “both cruel and unusual?”

To ask the question is to answer it. In both 1791 and in the early 21st Century, the word “both” implies that two independent requirements must be met before declaring a punishment “cruel and unusual.” As a first step, we note simply that in 1791 the Framers did not place the word “both” in the Constitution and since 1791 there has never been a significant faction, minority, or majority interested in a movement to alter these words. What we can say is that if a punishment is “both cruel and unusual”, then it is indeed “cruel and unusual.” The extent to which a punishment is “cruel and unusual” when it is “either cruel or unusual” or when it is “cruel and perhaps unusual” or when it is “unusual and (perhaps) cruel” are matters which have never been definitively defined either legally or linguistically. By imposing this bright-lined rule upon the text, Scalia has, of course, imposed upon the Constitution his own subjective methodological approach. Practically speaking, with his interpretation of these three key words he would remove an important class of judicial malfeasance from even the possibility of judicial review.

Gloss #2 - Is “unusual” a close synonym for “illegal?” [F 8-1]

In this case, to ask this question is only the beginning of an answer to the question. Indeed, the term “cruel and unusual” was a response to some startling outrageous behavior of the 17th Century which could be and was deemed to be illegal by English citizens when they adopted the English Bill of Rights. However, the continuing use of the term into the Founding era and into our own epoch has been one which has never been and is not now a narrowly defined term — which is why all justices end up giving the term their individual, even idiosyncratic, construction. One of the most important discussions of the term was given by Marshall in his Furman (1972) concurrence. First, he notes that the British had initially considered the word “illegal,” but had rejected it as too narrow. Secondly, he notes that many of the Founders explicitly considered the Eight Amendment to prevent torture and other excessive punishments (legal or no!!). Thirdly, and perhaps most importantly, Marshall notes that the terminology is somewhat inadvertent — the Founders and Framers were unable to find easily defined and agreed upon terminology and simply left us with an inherently imprecise terminology. It is a terminology which today has life almost exclusively as a legal term which judges, lawyers, and laymen alike must interpret as they are led by their knowledge, mind, and heart. Again, practically speaking, Scalia’s narrowly idiosyncratic reading of this key word would place an important subset of judicial malfeasance beyond review. In my own mind the idiosyncratic nature of Scalia’s opinion is not per se problematic. What is problematic are the hypocritical accoutrements of his insistence that there was ever a generally agreed upon and determinate meaning associated with the Eighth Amendment.

Gloss #3 - Is a jury’s discretionary judgment in “cruel and unusual punishment” cases “necessarily” beyond review?

In the Maxim #8 above, Scalia asserts that his legal philosophy binds him to follow whatever the jury has decided — much like the 600 British soldiers who blindly followed their orders into the jaws of death. For an injured petitioner who thinks the Eighth Amendment might arguably shield him from a unusually cruel jury verdict - think again if you seek Scalia’s vote. He has already washed his hands. [Special Footnote VIII-1] In one case, Ewing v. California (2003), Scalia voted with a Court majority to uphold a 25 year to life sentence for the theft of 3 golf clubs under California’s ‘three strikes’ laws. In another case, Harmelin v. Michigan (1991), Scalia wrote the Court Opinion in upholding a mandatory term of life in prison without possibility of parole for possession of slightly more than 650 grams of cocaine. And, as we will discuss further in Repartee #10, Scalia almost always upholds death penalty determinations by juries.
But there is a little bit more here than meets the eye. In Scalia’s dissent in Atkins v. Virginia (2002) Scalia lamented the Court’s disrespect for the jury’s authoritative character and quoted an articulate defense of the jury trial by one Matthew Hale written over 300 years ago. “Well,” I said to myself, “I don’t think a jury trial alone is necessarily the only way to determine a just result and I certainly don’t think the opinion of a British judge written two centuries before the American Bill of Rights was adopted is dispositive — but he certainly wrote well and presents an idea which still resonates with us today. But just who is this Matthew Hale, the proponent of the Superior English Way of adjudicating?” So I went to Wikipedia and I found a little more than I had expected. Among other items listed in Hale’s bio, I discovered that Judge Matthew Hale had presided over the trial and execution of defendants accused of witchcraft...

Instead of an uncritical paean to English jurisprudence, Scalia would have done well to heed Madison’s words on the benefit of an independent federal judiciary appointed to positions with lifetime tenure:

“ If ... [the provisions of a Bill of Rights] are incorporated into the constitution, independent tribunals of justice [e.g., Federal judges] will consider themselves in a peculiar manner the guardians of those rights.”
(Madison, introducing the Bill of Rights, June 8, 1788)

If Antonin Scalia thinks he is absolutely bound by a jury’s determination of either fact or appropriate punishment, then — in instances of deep-seated public prejudice — he is no longer a judge, but, like the Right Honorable Matthew Hale, he has become a shaman.

Gloss #4 - Can excessive or “disproportionate” punishments be Constitutionally permitted?

In Harmelin v. Michigan (1991) and in a concurrence accompanying the Ewing v. California (2003) case mentioned above, Scalia further argues that there is no constitutional restraint implicated by arguments which say punishment should be “proportional”. Scalia uses various historical practices to buttress his defense of a standard which says in essence that the convicted felon should receive his “just deserts — and then some.” The tradition that the punishment should be commensurate with the crime is found as early as the Magna Carta (1215), in debates during the ratification era, and in subsequent decisions of our Supreme Court [e.g., Weems v. U.S. (1910, Trop v. Dulles (1958), Solem v. Helm (1983)]. Indeed, one doesn’t really need to travel that far to get one’s clue about the meaning of cruel and unusual -- the Eighth Amendment begins by restraining both “excessive bail” and “excessive fines” sets the linguistic stage or, more to both the linguistic and legal point, places an anticipatory “penumbra” for utilizing our common sense understanding of “cruel and unusual.” [F2] In other contexts, of course, Scalia is quite prompt in rejecting “excesses.” In County of Riverside v. McLaughlin, (1991) Scalia argued that, presumptively, 25 hours was too long to hold a prisoner without bring him before a magistrate. [F3] [Special Footnote VIII - 2]

According to the American Heritage Dictionary in my home, “Cruel implies both disposition to harm and satisfaction in or indifference to suffering.” Justice Scalia may indeed have a good mind and a witty pen; so far, however, his judicial work has usually been characterized by a very narrow moral imagination markedly indifferent to the genuine consequences of his words and deeds. With some important exceptions, Scalia has not used that power on behalf of those individuals caught in a “justice” system that convicts, imprisons, and executes a large number of persons on standards that are de facto closer to “probable cause” than the formal “Guilty beyond a reasonable doubt.” Scalia does not believe that we should apply our common understanding of cruelty to the facts of the case. Rather he asserts that we are legally bound to interpret ‘cruel and unusual’ as, in effect, meaning an acceptance of almost any practice which we can find in the historical record of the colonies and new republic of the late 18th Century. Scalia’s interpretation of the 8th Amendment would fit well within the Code of Hammurabi (1790 BC). However, in my mind his opinions lack both the Founder’s dedication both to “a decent respect to the opinions of mankind” and their commitment “to establish justice, insure domestic tranquility... and secure the Blessings of Liberty.”

FOOTNOTES (Repartee #8):
[Footnote 8-1] Scalia does from time to time allude to past barbarities which he would (probably) vote to overturn, but these allusions usually have 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.
[Footnote 8-3] This particular case is discussed further in detail in Appendix A - Commendations for Antonin Scalia.

{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)

CASES CITED (Repartee #8):
Atkins v. Virginia, 535 U.S. 304 (2002) Scalia, Dissent
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) Scalia, Dissent
Ewing v. California, 538 U.S. 11 (2003) Scalia, Concurrence
Furman v. Georgia, 408 U. S. 238 (1972)
Harmelin v. Michigan, 501 U.S. 957 (1991) Scalia, Court Opinion
Louisiana ex rel. Francis v. Georgia, Texas, Florida, 329 U.S. 459 (1947)
Pacific Mutual Life Insurance Co. v. Haslip et al., 499 U.S. 1 (1991) Scalia Concurrence
Solem v. Helm, 463 U.S. 277 (1983)
Trop v. Dulles, 356 U.S. 86 (1958)
Weems v. U.S., 217 U.S. 349 (1910)

Immoral Maxim #9: Gay Rights & Amendment IX

Immoral Maxim & Repartees #9: Unenumerated Rights: Homosexual Sodomy and Gay Rights

Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Immoral Maxim #9a & #9b: “But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers”. Romer v. Evans (1996) Scalia dissenting

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.” Lawrence v. Texas (2003), Scalia dissenting

An Abiding Principle:

“While this Court has had little occasion to interpret the Ninth Amendment, 6 "[i]t cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174.


According to the 9th Amendment the Constitution shall not be used as a pretext to deny American citizens the full panoply of their God given rights and/or the privileges of citizenship. Over the past few decades it has slowly becoming evident to the American people that a persistent minority of human beings are sexually attracted without malice to others of their own sex. These complex emotional responses are, of course, socially mediated, but in addition it is becoming apparent that they contain a genetic component as well. Accordingly, within the general population (esp. the young) and in some legal circles a consensus is emerging that all adults have a right to consensual sexual behavior within the privacy of their own homes, a right unenumerated in the U. S. Constitution. In my own opinion, the most straightforward way to legally honor the dignity of relationships between same sex partners would be to explicitly declare that the rights of marriage and privacy accepted both legally and unconsciously for married or sexually active partners of differing sexes are Constitutionally required by the Ninth Amendment. In point of fact, of course, legal, legislative, and constitutional controversies about “gay rights” take place on a variety of fronts. I prefer to discuss the issue in these terms, however, because it is certainly true that before the adoption of the Constitution and during most of our history as an independent nation, most Americans have thought that sexual relationships between members of the same sex were immoral and, usually, illegal. While the extent of legal prosecution has diminished during the past centuries, “homosexuality” has frequently resulted in imprisonment. During colonial times, “homosexuals” were occasionally executed for “sodomy,” usually referring to what we today call anal or oral sex. So, to declare that “gays and lesbians” have the right to practice their individual form of consensual sex is to explicitly reject a significant component of past custom, morality, and law. And, of course, to reject the beliefs of a significant fraction of the contemporary American public. [F 9-1]

Scalia’s views are well known. Probably his most important legal opinion on the subject of consensual sex between adults of the same sex was his dissent for three justices in Lawrence v. Texas (2003) when the Supreme Court struck down Texas’s law against homosexual sodomy. In this decision, the Court also reversed Bowers v. Hardwick (1986) which had upheld a Georgia anti-sodomy law which had been applied only against gay men. Scalia also offered some very vituperative commentary in his dissent in Romer v. Evans (1996) when the Court struck down an anti-gay amendment to the Colorado Constitution. Characteristically, in Scalia’s Romer dissent he baited the Court for not openly overturning Bowers. Sure enough, in 2003, the Court overturned Bowers. In the Appendices I chide Scalia for both Casuistry (Appendix E) and Silliness (Appendix S) in his Lawrence opinion. Suffice it to say here that the fusion of Scalia’s religious and political prejudices and predispositions are quite evident.

Scalia’s general and quite skeptical and disparaging views on the Ninth Amendment have also been expressed on several occasions. Thus in Troxel v. Granville (2000) Scalia denied the ‘fundamental rights of parents’ to make important decisions. In effect, the Ninth Amendment is another dead spot in Scalia’s Constitution. [F 9-2] Here the limitations of Scalia’s methodology are in play. Since he does not admit consciously that tensions in the nation’s understanding of important principles inevitably give rise to changes in our conscious and unconscious understanding of those principles he reverts to invective when those changes shift the ‘firm ground’ on which he thought he was standing.

Explicit use of the Ninth Amendment in legal and Constitutional thinking has been unusually sparse. Perhaps the most important instance was Author Goldberg’s concurrence in Griswold v. Connecticut (1965) where he argued that the Ninth Amendment protected the privacy of married couples to in their use contraceptives. More recently, in Richmond Newspapers, Inc. v. Virginia (1979) Chief Warren Burger in a Plurality opinion used the Ninth Amendment to support the ‘unenumerated’ right to attend and report upon criminal trials. To be sure, there are powerful constraints indeed which impinge upon the Court’s use of the Ninth Amendment or any other Amendment to uphold a controversial “right.” For one, the last thing a Court would usually want to do is to — on its own — declare a “right” which has not been publicly acknowledged by a significant portion of the population for a considerable period of time. In most cases of interest, a Constitutional Amendment is the clearest route to such a declaration of either a new or unenumerated right — Amendments Fifteen, Nineteen and Twenty-Six giving voting rights to former slaves, women and 18 year-olds, respectively — being the best examples. There are exceptions — some enduring, some transient. A constitutional Amendment was not needed to extend voting rights to those without property during the Jacksonian era. More recently and controversially, the Court in Citizens United v. FEC (2010) has given corporations an unenumerated right to bombard the public with distracting and distorted propaganda during political campaigns. (This opinion may not stand.)
As in any issue involving “rights” there are always implicit and explicit constraints. Consensual sexual activity by adults, even in the privacy of their homes, often has societal implications. A spouse could easily be affected by such behavior — and so even in these very private matters, such activity is properly subject to legal scrutiny in, say, divorce or custody cases. However, Justice Scalia’s constant reference to sexual activity between consenting adult men as [simply] ‘homosexual sodomy’ is a verbal exemplar of religious and sexual bigotry. In my view, if he were to use the term ‘faggot’ in public he would not be any more wrong in his behavior than he has already been in his legal opinionating. He speaks from within a long tradition of intolerance towards gays within Western and Middle Eastern religions that is not appropriate for any sect or state, let alone for those who profess to believe in “The Holy Freedom of God’s Children.” {Special Footnote IX-A} He and other straight men with religious interests might profit — as I have — from studies such as John Boswell (1994). Same-Sex Unions in Premodern Europe. [F9-4]

FOOTNOTES; CASES;

FOOTNOTES;
[F 9-1] Whether we are referring to a majority or minority view on these issues is both issue specific and dependent upon the framing of the question. As a general view, most Americans who are not themselves gay are much more supportive of the privacy rights of gay people than of their “right to legally marry.”
[F 9-2] Cf. APPENDIX D - Dead Spots in Scalia’s Constitution for a little more documentation.
[F 9-3] In his 1989 book, The Rights Retained by the People, and on the WEB Randy Barnett has produced some very intriguing and, to my mind, very persuasive evidence and argument which augurs a more important role for the Ninth Amendment in coming decades.
[F 9-4] Boswell examines the abundant evidence of Church-approved religious ceremonies blessing same -sex unions for over a thousand years. While most of these ceremonies were in the Eastern Orthodox Church, they were also occasionally performed in Western and/or Latinate Churches.

{Special Footnote IX-A}
For the record, I am fairly straight. As a teenager, I engaged in some youthful explorations of my body’s new powers with another male teenager — but my sexual joys, desires, and temptations have since consistently been directed towards the opposite sex. Of course, at my age I am getting too old even for most temptations! (sub silentio)

CASES CITED: 9th Amendment

Bowers v. Hardwick, 476 U. S. 186 (1986) White Court Opinion
Citizens United v. Federal Election Commission, No. 08-205 (2010)
Griswold v. Connecticut, 381 U. S. 479 (1965) Goldberg concurrence
Lawrence v. Texas, 539 U.S. 558 (2003) Scalia dissent
Marbury v. Madison, 1 Cranch 137, 174 (1803)
Romer v. Evans, 517 U. S. 620 (1996) Scalia dissenting
Troxel v. Granville, 530 U. S. 57 (2000) Scalia’s dissent


BOOKS:
Randy E. Barnett, Editor (1989). The Rights Retained by the People: The History and Meaning of the Ninth Amendment. George Mason Univ. Press: Fairfax, VA. 416 pages.
John Boswell (1994). Same-Sex Unions in Premodern Europe.

IMORAL MAXIM #10: THE DEATH PENALTY

Immoral Maxim & Repartee #10: The Supreme Court and the Dealings of Death

The Death Penalty and the 5th, 8th, and 14th Amendments.

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Furman v. Georgia (1972) Stewart, concurring.

Immoral Maxim #10:

“Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” [Antonin Scalia, dissenting in Atkins v. Virginia (2002) which struck down the Death Penalty for the mentally retarded] [F1]

“From this day forward I shall no longer tinker with the machinery of death.” Harry Blackmun, dissent, denial of certiorari Callins v. Collins, (1994)

Death Penalty cases arise before the Supreme Court in various forms — usually raising questions of either “due process of law” or “cruel and unusual punishment.” As a general rule, in non-capital cases, Scalia tends to be skeptical of the claims of convicted petitioners and will frequently support very harsh penalties. [F2] This is even more true of his findings in death penalty cases where — and I am using my words with care — Scalia tends to write “with a vengeance.”
Before discussing the results of Scalia’s “jurisprudence” and his methodology, it is important to note some features of his style of argument. Two characteristics of his approach should alert us to the fact that something rather peculiar is going on in the mind of this judge. One that hits me immediately is his frequent tendency to refer to those opinions of the Court with which he disagrees as the Court’s “death-is-different jurisprudence.” This bracketing of the phrase “death is different” suggests that Scalia harbors some doubt as to whether the death penalty is really different in kind from other punishment. If Scalia actually has something new to say on this issue he needs to say it without innuendo. Secondly, in a number of his dissents, after some short introductory declarations, Scalia often describes the terrible details of the crimes committed by the petitioner in the cases before him. Indeed, Scalia appears to almost relish presenting a parade of horribles as he explains why he thinks, say, that mental retardation or youth should not restrict our use of the death penalty in the cases that have appeared before him. As a matter of fact, a number of death penalty cases that come before the Court involve very brutal crimes. However, Scalia’s opinions in these cases read more like the self-righteous pleadings of the prosecutor than the reasoned considerations of a judge.
If Scalia’s uninhibited style requires some attention, the actual holdings or “results” of Scalia’s work are readily seen to be on the relatively cruel and indifferent end of the judicial spectrum. He has consistently — often passionately — argued that the Death Penalty should be applicable to minors (including 15 year olds) [Thompson v. Oklahoma (1988); Stanford v. Kentucky (1989); Roper v. Simmons, 543 U.S. 551 (2005)], rapists [Kennedy v. Louisiana (2005)] [F 3] as well as to the mentally retarded [Penry v. Lynaugh (1989); Atkins v. Virginia, 536 U.S. 304 (2002)]. He has argued that Victims Impact Statements with their distracting emotional appeal should be allowed at sentencing — even though these statements of family and friends are inherently difficult to rebut when they are overstated [Booth v. Maryland (1987); Payne v. Tennessee (1991)]. He has argued that persons who would execute anyone convicted of a potentially capital murder are qualified to sit as ‘neutral jurors’ while rejecting as ‘harmless error’ a verdict by a jury improperly altered when a juror who expressed some doubt about the reach of the Death Penalty was excused. [F 10-4] Most troubling indeed was his dissent in Simmons v. South Carolina (1994). In this case, the judge refused to answer a jury inquiry about the nature of parole (the defendant under South Carolina law) would have been ineligible for parole even though the prosecutor had presented the argument that the jury should consider the defendant a “threat” — and impose the death penalty as an act of “self-defense.” Scalia’s tortured opinion looks everywhere except at the offending words themselves. Even the three conservative justices Rehnquist, Kennedy, and O’Connor — no tender-hearted liberals seeking to coddle criminals these — voted to reverse the South Carolina Judge. [F 10-5]
As suggested above, Scalia’s judicial approach in Death Penalty cases is similar to his approach on the 8th Amendment’s prohibition of Cruel and Unusual punishment or other cases involving ‘due process of law.’ The most remarkable characteristic of Scalia’s “jurisprudence” on Death Penalty cases is not that he believes that the Death Penalty is “Constitutionally” justified — the Founders clearly believed that the Death Penalty was appropriate in a number of circumstances and today most citizens and judges within the United States still believe that to be the case. What is surprising is how narrowly and vociferously he defends practices such as the death penalty for minors and the mentally retarded. He also consistently raises artificially high legal barriers in death penalty cases which present credible prima facie evidence of improper, unjust and/or illegal activity in the courts below. Scalia does not believe that we should apply our common understanding of cruelty to the facts of the case. Rather he asserts that we are legally bound to interpret ‘cruel and unusual’ as, in effect, meaning an acceptance of almost any practice which we can find in the historical record of the colonies and new republic of the late 18th Century.
Scalia’s record is that for him the 8th Amendment in death penalty cases is virtually a dead letter. [F 10-6] His use of the due process clause as merely formal in death penalty cases is a classroom exemplar of judicial malfeasance (Cf. Repartee #5). In Appendix C I analyze Scalia’s methodology in more rational terms. Essentially, I argue there that the penology of “retribution” improperly taints the notion of deterrent justice with the irrational and unjustifiable thirst for revenge. Scalia’s inordinate justifying analysis of this ancient tendency within the law helps to make my case. His occasional casual comments about the unlikelihood of anyone being executed even when innocent are silly, even frivolous. There is, however, an important exception to my list of objectionable death penalty opinions. In a concurring opinion in Ring v. Arizona (2002) Scalia supported the position that judges cannot and should not overrule a jury’s recommendation for mercy in Death Penalty cases. [F 10-7] In spite of such extenuating case, however, on far too many capital cases Justice Antonin Scalia’s position has been, at best, a stance of malignant indifference — and, at its worst, a methodology of active and actual malice.

FOOTNOTES
[F 10-1] A little more revealing of some inward, 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.”
[F 10-2] See Repartee #8. Some exceptions are noted in Appendix A.
[F 10-3] Kennedy v. Louisiana was a particularly terrible case involving the rape of an 11-year old. If one wished to reinstitute the death penalty for a crime not involving murder, this appears to be your case. But that is precisely the point, prosecutor’s seeking public approval in sensational cases and sitting juries filled with righteous indignation are a prime source for both disparate sentences and the conviction of the innocent. The judicious approach is to forgo some pleasure in “full revenge” in order to live in a fairer — and therefore safer — society. If this is an elitist approach — so be it.
[F 10-4] Cf. Appendix E - Casuistry in the Opinions of Justice Antonin Scalia. In my opinion,Scalia’s most egregious inconsistencies rise to the level of casuistry. These inconsistencies are particularly evident in death penalty cases.
[F 10-5] Also, see Repartee # 5 for his comments about “actual innocence” as a non-judiciable factor.
[F 10-6] See Appendix D - Scalia’s Constitutional Dead Spots.
[F 10-7] Of course, a Life Sentence without the Possibility of Parole is not usually a particularly high standard for use of the term “mercy.”


CASES

Atkins v. Virginia, 536 U.S. 304 (2002) Scalia dissent.
Booth v. Maryland, 482 U.S. 496 (1987)
Callins v. Collins, 510 U.S. 1141 (1994) certiorari denied.
Furman v. Georgia, 408 U.S., at 306 (Stewart, J., concurring).
Kennedy v. Louisiana, #07-343 (2005) Scalia dissent
Payne v. Tennessee, 501 U.S. 808 (1991)
Penry v. Lynaugh, 492 U. S. 302 (1989)
Ring v. Arizona, 536 U.S. 584 (2002) Scalia concurrence
Roper v. Simmons, 543 U.S. 551 (2005) Scalia dissent
Simmons v. South Carolina, 512 U.S. 154 (1994)
Stanford v. Kentucky, 492 U.S. 361 (1989) Scalia: Court Opinion
Thompson v. Oklahoma, 487 U.S. 815 (1988)

Immoral maxim #11: Misusing the 14th Amendment

IMMORAL MAXIM #11: BUSH v. GORE AND THE MISUSE OF THE 14th AMENDMENT

From Amendment #14, Section 1:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” July 9, 1868

Immoral Maxim #11 - Misconstruction Continued.

"The issue [of Bush v. Gore] was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.]" (Post facto commentary by Antonin Scalia)

Issue #11: Courtly Commentary - The sad truth

“One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.” [Stevens, dissenting in Bush v. Gore (2000)]

Scalia’s own words reveal the naked political lens thru which he viewed the U. S. Presidential election controversy of November and 2000. Without gainsaying the fact that Supreme Court decisions are almost always inherently or implicitly political in some important measures, there are more judicious ways to view the Bush v. Gore controversy. Justice John Paul Stevens, who also was appointed by a Republican President, outlined the fateful improprieties of this improvident decision in a dissent which has never been answered satisfactorily because it cannot be answered satisfactorily. We only outline the case here with particular emphasis upon the handiwork of Justice Antonin Scalia. [F 11-1] The 5-4 per curiam decision was unfortunate enough, but Scalia’s brazen behavior and opinion were particularly egregious.
While debate about the case still continues and I shall reference other views than my own, for myself the decision itself is fairly criticized and properly condemned for two salient features of the Court’s action. First, contrary to ruling Federal and State precedents, on December 9, 2000 the Court became a FULL PARTY to the Bush Post-Election strategy to prevent a fair recount of the Florida Presidential vote. The legal team for Bush simply delayed the recount by all legal means until various statutory deadlines came into play. [F 11-2] Secondly, the U. S. Supreme Court intruded into the process to resolve a conflict which Constitutionally under Amendment Twelve should have been resolved by the branches of Congress. Let me be clear, it is my own judgment that once the Florida Supreme Court had certified the election after the recount had continued for another week or so, then it was possible, even likely that either the United States Senate or the U. S. House of Representatives would — in the end — probably have selected George W. Bush as the 43rd President whoever the Florida Supreme Court had certified as the winner of Florida’s electoral vote. If the result was, then, eventually to have become a naked political decision — well, then, better to have let the deed be done in full daylite (sic) as a political decision of the political branches. Furthermore, it is also not at all clear that a reasonably fair and legal recount supervised by the Florida Supreme Court would have resulted in an Al Gore victory. Even tho it seems quite clear that more Florida voters intended to vote for Gore intended to vote for Bush, the practical problem is that determining the intent of the voter after a voter, machine or instructional error is an inherently partial and incomplete remedy. Now let us continue with our tale, recapitulating a little in order to keep the sequence of events in a proper focus.
After a 5 week election recount controversy the winner of the Presidential Election of November 7, 2000 was decided by a United States Supreme Court decision on December 12, 2000. The decision, Bush v. Gore (2000) ended the recount of the Florida vote, a recount which the Florida Supreme Court had ordered. The Florida Court had taken this action after a number of voting irregularities in Florida were discovered and then challenged by the Campaign of Democrat Al Gore, Jr. In attempting to manage the challenges and controversy, the Florida Supreme Court — following the Florida Constitution and established national precedents — had tried to count all legal votes. [F 11-3] The Florida Supreme Court standard was that the intent of the voter, when it can be determined, was to be honored. During the 35 day post-election controversy Associate Justice Antonin Scalia was a de facto partner of Republican Presidential Candidate George W. Bush’s “run out the clock strategy.” The Bush campaign wished to delay the recount to such an extent that Constitutional, legal, and practical pressures for closure would end the recount. On Saturday of December 9 the U.S. Supreme Court’s issued a stay which ended the Florida recount. On Tuesday evening of December 12 the formal announcement of the U.S. Supreme Court’s per curiam 5-4 decision in the case of Bush v. Gore (2000) ended all hopes for a recount of the contested Florida Presidential results — a recount which had been necessary to preserve both the legal and moral legitimacy of the contested Florida Presidential vote.

Antonin Scalia’s contribution to Bush v. Gore was threefold. One, a short note accompanying the Supreme Court stay of the Florida recount on the morning of December 9, 2010 revealed that Scalia had already determined how he was going to vote before the oral argument set for the following Monday of December 11. Secondly, he joined the Court’s per curiam decision on Tuesday, December 12 which held that Bush’s rights could be irreparably damaged by continuing the recount while simultaneously and almost frivolously discounting and ignoring the equally pertinent claim that Al Gore’s rights could be irreparably damaged by if a proper recount was discontinued. Because the Court on its face refused to give due diligence to its consideration of both parties claims, the U. S. Supreme Court itself ended up in both casting a cloud upon the legitimacy of Bush’s election and in undermining its own integrity. [F 11-4] Finally, Rehnquist, Scalia, and Thomas joined in a tri-partie Concurrence which proffered additional legal reasons for reversing the Florida Supreme Court. However, a closer look at this concurrence reveals a recurring pattern in Scalia’s misunderstanding of the Fourteenth Amendment. In my view, whether this persistence is due to an improper intellectual fixation or moral chicanery, its results are tantamount to judicial malfeasance. We examine the three issues in turn.

On December 9, 2000 the Court ordered an end to the recount of the Florida Presidential vote pending their final decision which was to come three days later. Antonin Scalia added this note to the court’s order.

“The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election, ... Count first, and rule upon legality afterward, is not a recipe for producing election results that have the public acceptance democratic stability requires.” (Antonin Scalia, addendum to December 9, 2000 certiorari grant and order for stay preceding Bush v. Gore arguments and decision)

The issue before the Court was precisely whether the Florida recount then in progress was applying sufficiently high standards in their efforts to recover legally cast votes which had not been counted. There is no question for an honest observer that (1) legally cast votes had not been counted and (2) that, until the Florida Supreme Court Gore v. Harris decision of Dec 8, the remedies being utilized were not sufficiently uniform. Thus when Scalia addressed only the latter component of the pending legal contest as a justification for a stay, he indicated that his mind on the pending case was already made up. Dissenters to the stay made it clear that no immediate stay was required. Bush was going to get his day in a conservative Republican dominated Court (with Court family members such as Thomas’s wife already involved in the Bush election campaign). Scalia’s remarks make sense only as indicators of his active commitment to the Bush-Olsen strategy of delay. Like his Republican counterpart Florida Secretary of State Katherine Harris, during the election controversy Scalia acted as though his selection to an office of public trust was a license for purely partisan behavior. [F 11-5]
The actual 5-4 per curiam decision was of course the collective effort of Chief Justice Rehnquist, O’Connor, Kennedy, Scalia, and Thomas. One can charitably view their decision as the all-too-human inability to provide justice when one’s own biases are being challenged. There were rumors that Kennedy fretted about the decision. After eight years, retired Justice O’Connor expressed some public uncertainty about the decision. The decision itself was palpably flawed. In issuing their decision, majority disclaimed the decision’s precedential value “Our decision is limited to the present circumstances.” Then, 36 days after the election, in effectivo reversing a slew of decisions concerning recounts and a State Supreme Court’s presumptive role in determining state law, the majority — for the moment — imposed new election law standards which honored the wishes of one party [Bush campaign] while denigrating the wishes of the other [Gore campaign]. Furthermore, not unnoticed, in previous decisions the five members of the Bush v. Gore majority had had a pronounced tendency to defer to State courts even to the point of restricting or even overturning previous Supreme Court decisions of the Warren and Burger Courts. Their unbalanced advocacy of the Fourteenth Amendment to champion the “equal protection” clause for one party while denigrating the “equal protection” clause for the other party was also surprising. Heretofore, these “conservative” justices had been much more reluctant than their colleagues to rely on the Fourteenth Amendment in many of the cases which were presented to the Court. This was particularly true for one Antonin Scalia who had argued in numerous venues that one should not “read into” the 14th Amendment rights that were not there. In legalese, Scalia had tended to argue that the Court should not invoke “substantive due process.” In Bush v. Gore, however, Scalia shed his legal scruples as quickly as a stripper dropping her garments.

Even more telling of jurisprudential responsibilities gone awry was the tri-partie concurrence by Rehnquist, Scalia, and Thomas. In their concurrence they relied upon an 1892 decision, McPherson v. Blacker, which asserted that previous law “leaves it to the legislature exclusively to define the method” of choosing Presidential Electors. The Republicans in Florida and on the Bush legal team had argued that the Florida Supreme Court — while trying to resolve the conflicts between the Florida Constitution, governing legal precedents, and narrow findings by the Florida Secretary of State — were ‘making new law’ and thus preempting the legislature’s prerogatives. That sounds fine if one adapts a rather limited and overly literal perspective. But the Florida Supreme Court was dealing with procedural and mechanical irregularities which were in prima facie conflict with the provisions of the Florida Constitution. It is precisely because the Florida Constitution articulates principles which embody the “due process of law” and “equal protection of the laws” that the Florida Supreme Court was legally and morally required to review the widespread mechanical and procedural failures of the Florida Election equipment and their tendentious misuse by Florida state officials. Indeed, I think the Florida Supreme Court was somewhat reluctant to adopt the strong methods that were needed to bring the Florida recount under the aegis of the Fourteenth Amendment precisely because they did not want to appear either too partisan or too activist. In the light of history the issue now and henceforth before the American People is whether the United States Supreme Court in Bush v. Gore properly overruled the Florida Supreme Court’s decision in Gore v. Harris? And it seems quite clear to me that the Florida Supreme Court was much closer to both the Spirit and the Letter of the United States Constitution than was the United States Supreme Court when it ruled on 12 December 2000.

MORE GENERAL REFLECTIONS

More than a century before, the electoral votes of Florida and two other states in the contested Presidential election of 1876 (Garfield versus Tilden) had been shamelessly appropriated by post-election partisan judgment. And, just as the election of 1876 was followed by a political deal which ended reconstruction and helped to further the rise of the Klu Klux Klan and segregation in the South and their attendant evils, the illegitimate election of 2000 served to empower an administration with a disdain for domestic public justice and a contempt for international law, On the domestic side the Bush-Cheney administration’s zeal for enriching the rich has wreaked havoc on the social-economic health of our country. On the international side the Bush-Cheney administration’s dishonest initiation of an unlawful imperial war in Iraq and its unconscionable torture of innocent and guilty alike at Guantanamo, al Gharib and Bagram have brought the country into a deserved disrespect and provide an enormous psychological boost to those in the Islamic World who are tempted by the siren of Holy Warfare. On both the domestic front and the international front President George W. Bush and his Vice President displayed both a disdain and contempt for the Constitution and its principles.
Of course, the current international and domestic problems of our country are rooted in weaknesses and misdeeds of the general populace and of all political parties. Furthermore, some of our latest political follies are frequently but continuations of a checkered history which has included slavery, genocide, and imperialism as well as bravery, the defense of liberty, and the promise of economic and social opportunity. However, those who have the most power are those who have the most responsibility, and when they do wrong - whether they are agents of the few or the many - they are those who must be held to account. The most egregious misdeeds of the past eight years have been only partially and ineffectually addressed by the new Democratic President Obama and the 111th Congress. But there will be no progress in the United States until the records of its leaders’ misdeed are are clear for all to see. Those misdeeds, while not predictable, are clearly consequent to and largely consistent with the judicial misdeed committed by the Supreme Court in the case of Bush v. Gore argued on Monday, December 11, 2009 and decided on late Tuesday, December 12. The majority ruling, like many practices, policies, and ideas promulgated by Republicans and contemporary American conservatives, was but one of the more fateful examples of a political establishment that uses legal arguments and precedents as weapons to untether political, legal, and constitutional processes and principles from the public good and consent upon which all legitimate government derives.
Over a century ago, Senator John C. Calhoun of South Carolina and Chief Justice Roger Taney provided seemingly rational intellectual justification for the practice of chattel slavery in the United States. Today, conservative ideologues provided intellectual justification for the American support for continuing excesses of international capitalism and attendant military adventurism. Arguably, the most forceful legal proponent of ideological bolsters for conservative excess is Associate Justice Antonin Scalia.
Again, to be fair, Justice Scalia is a unique person. He provides defenses for conservative that are usually relevant, sometimes humorous, and quite frequently both pointed and intelligent. Indeed, I am happy to agree that in some cases, I find his opinions not only quite defensible, but even substantially correct. [F 11-7] However, this is not to be the discussion of one man’s strengths and weaknesses. We are discussing here a legal spear brazenly and illegitimately thrown into the heart of the American popular will — and at the point of this spear we find the opinions and votes of one Associate Justice Anton Scalia.

NOTES; BIBLIOGRAPHY:

FOOTNOTES

[F 11-1] In addition to the dissents, the two 2001 books by Bugliosi [The Betrayal of America] and Dershowitz [Supreme Injustice] explore the more glaring improprieties and legal inconsistencies of the Court majority’s acts and opinions. A brief synopsis of important books is found at the end of the end of the bibliography.
[F 11-2] The book by Jake Tapper (2000) [Down and Dirty] provides the best insight into the nitty gritty of the political and legal machinations of both campaigns and their legal teams. Neither party is spared some trenchant criticism. Again, we note that a synopsis of important books concerning the controversies is found in the bibliography.
[F 11-3] Merzer’s book [The Miami Herald Report: Democracy Held Hostage], written several months after Bush had been inaugurated, examined the uncounted ballots, but was somewhat inconclusive.
[F 11-4] Again, many of the damning details of this judicial misdeed are contained in the two books by Bugliosi (2001) and Dershowitz (2001). Cf. Bibliography for full citations.
[F 11-5] Harris had already compromised the Florida election by pushing for a purge of the rolls which led to the improper removal of several thousand legal voters. [For example, if a voter had a name similar to an ineligible felon their name would be removed without notification to the person listed in the local rolls.] Later, much of the delay in the Gore campaign’s attempt to obtain entitled legal relief was due to her peremptorial stalling tactics [usually overruled a few days later]. The titles of the Florida cases tell the story: McDermott v. Harris, Palm Beach Canvassing Board v. Harris, Gore v. Harris.
[F 11-6] I suspect that the best argument for the Court majority’s decision is found in Posner’s Breaking Deadlock. In this book Posner develops the argument found in the Rehnquist, Scalia, and Thomas concurrence. Judge Posner, an independent Federal appeals Court judge, is clearly much better informed and knowledgeable about the law than the author could ever hope to be. My only response to his superior craft in framing legal and constitutional argument is that legal and moral assumptions are sometimes dispositive in how any of us read the Law and the Constitution… Again, see the bibliographical synopsis of books about Bush v. Gore to explore other perspectives.
[F 11-7] This is, of course, the thrust of Appendix A - Commendations for Justice Antonin Scalia.
[F 11-8] Seven justices agreed that there were serious irregularities and inconsistencies in the Florida recount procedures. The debate was about the remedies. The historical bone that still remains in the democratic throat is that the record of irregularities in how the votes had been counted in the first instance were ignored while the smaller and more manageable irregularities in the recount were considered dispositive. The dissents by Souter and others addressed these specific issues.

SUPREME COURT CITATIONS:
Bush v. Gore, 531 U.S. 98 (2000)
McPherson v. Blacker, 146 U.S. 1 (1892)

Judicial Malfeasance of Bush v. Gore (2001).
Bugliosi, Vincent (2001). The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose our President. Thunder’s Mouth Press: New York.
Dershowitz, Alan M. (2001). Supreme Injustice. Oxford Univ. Press: New York.
Dionne, E. J. & Kristol, William, Editors (2001). Bush v. Gore: The Court Cases and the Commentary. Brookings Institution Press: Washington D. C.
Merzer, Martin (2001). The Miami Herald Report: Democracy Held Hostage. St. Martin’s Press: New York.
Posner, Richard A. (2001). Breaking the Deadlock. Princeton Univ. Press: Princeton.
Rakove, Jack N. (2001). The Unfinished Election of 2000. Basic Books: New York.
Sammon, Bill (2000). At Any Cost: How Al Gore Tried to Steal the Election. Regnery Publishing Inc.: Washington, DC.
Tapper, Jake (2000). Down and Dirty: The Plot to Steal the Presidency. Little Brown and Company: Boston.

Bush v. Gore: Synopsis of Literature.

Many books and articles about the recount controversy were written during late 2000 and 2001. Very informative in reporting the actual problems of the election recount and in uncovering competing political and legal responses were the books by Merzer and Tapper. The book by Dionne & Kristol provides perhaps the most civil and even handed representation of the public debate during the extended contest. The book contains the main court opinions plus an extensive and representative selection of newspaper and magazine articles from both sides of the late 2000 controversy. The book by Rakove, a collection of 6 essays presents a more learned discussion of the underlying issues. As indicated in the footnotes, the books by Bugliosi and Dershowitz present the most salient moral and legal problematics of the Court’s decision. The book by Sammon focuses on some questionable acts by the Gore campaign, but much of it is tangential to the actual legal contest. Sad to say, the later 2004 book by Zelden, also titled Bush v. Gore, is but one indicator that the structural problems and inequities revealed during the election have not been resolved. There is, of course, no question that how one views the ever-present tension between the letter of the law and the demands of democratic justice color our views of this controversy. The perspective of this work, of course, is that such differences are not sufficient to justify rank hypocrisy. The best that can be said for a partisan defense of Bush v. Gore is that the Court, overly fearful that the Democrats might improperly count too many discarded Gore ballots, took the law into their own hands and, under cover of law, bent the results to their own personal and overly partisan ends. [F 11-8]

Immoral Maxim #12: The Founders' Vision

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

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

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

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

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

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

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

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

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

Moral Maxim #12. A somber and sobering reality:

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

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

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

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

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

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

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

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

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


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

CASES CITED:

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

Immoral Maxim #13: Implictions of the Gettysburg Address

IMMORAL MAXIM #13
THE GETTYSBURG ADDRESS & THE CIVIL WAR AMENDMENTS

From THE GETTYSBURG ADDRESS - “It is rather for us to be here dedicated to the great task remaining before us…that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth.” Abraham Lincoln (Nov. 19, 1863)

MAXIM #13. AN IRRELEVANT MAXIM & MISLEADING IMPLICATIONS - “My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man's brow, I don't think he had ever even seen a black man." [Antonin Scalia]

REPARTEE - The question for Justice Scalia is not whether his family ancestors were in the United States during 1861-1865 or in the American South from 1865-1964. The question for Justice Scalia is whether he understands in his heart of hearts that these Amendments were the product of a GREAT CIVIL WAR — which has forever changed our understanding of the Constitution.

When it comes to deciding issues involving the 13th, 14th and 15 Amendments, a primary question for Justice Scalia or any other Supreme Court Justice is whether he understands in what manner these Amendments were the product of a Great Civil War — a War which not only freed the slaves, but also a War which has forever changed our political and legal system. His father’s or any of his ancestors’ lack of understanding of American historical realities may have slowed initial Scalia’s understanding of this country, but these matters should by now be peripheral to his present work. Justice Scalia’s primary task as a Supreme Court Justice is not to evaluate any contemporary individual’s guilt, innocence or ignorance with respect to the historical events that have produced the original Constitution and its subsequent 27 amendments. With respect to judicial issues rising out of the application of the 13th, 14th and 15 Amendments, the question for Justice Scalia is whether he understands in his heart of hearts that these Amendments were the product of a GREAT CIVIL WAR — a war which altered both the terms and the perspective with which we interpret the present Constitution.
Antonin Scalia made the above remarks in an opinion in which he disagreed with some affirmative action procedures which were intended to remedy racial injustice and/or racial disparities. Without discussing the practical or legal merits of the particular remedies in dispute, it is clear that Justice Scalia has consistently taken his eyes off the ball when it comes to the 14th Amendment. The 14th Amendment was the product of a Great Civil War which altered forever the relationships between the nation, the states, and the citizenry of The United States. These changes effect all citizens of the United States whether they are descendants of revolutionaries, slaves or immigrants. Furthermore, the Civil War Amendments (Amendments XIII, XIV, and XV) effect the meaning of the entire Constitution which he claims to uphold, including those Articles and Amendments adopted before the Civil War.
I briefly note Scalia’s fundamental deficiencies in such matters. One, he tends to think that since de jure Afro-Americans have now been constitutionally and legally declared to be entitled to the full rights and privileges of citizenship, any assertions of de facto racial bias are generally to be entertained only with the greatest skepticism. Consequently, Scalia is prone to deny any claims of legal relief [thru (sic) affirmative action programs, for example] because he is already predisposed to believe that most discriminatory action is due to minor individual deviations from the fair-minded practice of the American citizenry and not legally redressable.
Secondly, his most egregious use of the 14th Amendment was in Bush v. Gore where he strained the meaning of the law, Supreme Court precedents, and the Constitution to support the objectives of the Campaign of then Texas Governor George W. Bush while ignoring those laws, precedent, and the Constitutional text which would have support the objectives of the Campaign of Vice President Al Gore.
Thirdly, his reactionary interpretations in 8th Amendment cases are replete with tendentious citations of British and American authorities of the 17th and 18th centuries. As Scalia seems almost honor bound to deny any tempering of justice with mercy, he tends to highlite (sic) as precedentially binding the worst tendencies within early colonial and Revolutionary times. He seems oblivious to the fact that by end of the 18th Century that outside the South the American people had begun to reject the frequent use of capital punishment for all number of felonies. He never considers that John Bingham and the other the Framers of the Civil War Amendments were — in the legal language of their times — asserting that the States could not place themselves between the people and the rights and liberties asserted in the Bill of Rights. In short, these Framers placed constitutional language which was to overrule not only Dred Scott, but also Barron v. Baltimore and other precedents which had upheld state abuse of individual liberty. [F 13-1] Furthermore, it apparently never crosses Scalia’s mind that by the middle of the 17th Century the precedents in criminal law which he treasures were already corrupted by the peculiar institution of slavery with its frequent use of capital murder to suppress the underclasses, especially slaves. [F 13-2]
In sum, the chimera of a fixed founder’s consensus as a bulwark against progressive change — changes required by the American people’s understanding of their own Constitution — is a simple fiction used as a weapon by Antonin Scalia in his fight against public justice. By asserting that the Constitution is a simple collection of megarules void of significant contrary implication, so that we are always bound by the past meaning of the text [or, more accurately, one subset of past beliefs], absent explicit Amendments to the contrary, is to mock the American people and their Constitution.


NOTES:
[F 13-1] Cf. Amar (1998). The Bill of Rights: Creation and Reconstruction. After a hiatus of eight decades or so, Justice Hugo Black placed the issue of incorporation on the Court’s agenda, most notably in Adamson v. California (1947). An even more detailed and persuasive historical appraisal of that somewhat forgotten era is found in Charles Fairman’s 1949 Stanford Law Review article on the 14th Amendment.
[F13-2] Cf. Banner (2002). The Death Penalty: An American History. for a few examples.

CASES:
Adamson v. California, 332 U.S. 46 (1947)
Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
Scott v. Sandford, 19 Howard 393 (1857) [or, Dred Scott v. Sandford]

BOOKS:

Bibliography of Books and Writing
Amar, Akil Reed (1998). The Bill of Rights: Creation and Reconstruction. Yale Univ. Press of Virginia: New Haven. 412 pages.
Stuart Banner (2002). The Death Penalty: An American History. Harvard University Press: Cambridge, MA; London, England. 385 pages.
Fletcher, George P. (2001). Our Secret Constitution. Oxford Univ. Press: Oxford.