Register FAQ / Rules Forum Spy Search Today's Posts Mark Forums Read
Go Back   MacRumors Forums > Mac Community > Community Discussion > Politics, Religion, Social Issues

Reply
 
Thread Tools Search this Thread Display Modes
Old Jun 26, 2013, 10:03 AM   #1
citizenzen
macrumors 65816
 
Join Date: Mar 2010
Scalia Contradicts Himself?

In his dissent to the decision to strike down DOMA, Justice Scalia writes ...

Quote:
“We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

http://nbcpolitics.nbcnews.com/_news...alifornia?lite
Yet he was just part of the majority that voted to invalidate a key part of the Voting Rights Act, another piece of "democratically adopted legislation".

Is Scalia contradicting himself?

Or am I missing something that helps to explain why his previous ruling wasn't likewise a Court error from the same diseased root?
citizenzen is offline   0 Reply With Quote
Old Jun 26, 2013, 10:08 AM   #2
quagmire
macrumors 603
 
quagmire's Avatar
 
Join Date: Apr 2004
Location: Celestial Being
Prop 8 was directly voted on by the voters, the vote rights act wasn't. According to the decision, congress/president passed an unconstitutional law.

Now I disagree with him that SCOTUS doesn't have the power to overturn a law voted on by the voters. That is what the court system is there for. Protects the minority from laws passed by the majority.
__________________
Crimes against US History:
CV-6 USS Enterprise
Yankee Stadium
Penn Station-New York
quagmire is online now   4 Reply With Quote
Old Jun 26, 2013, 10:20 AM   #3
elistan
macrumors 6502a
 
Join Date: Jun 2007
Location: Denver/Boulder, CO
Quote:
Originally Posted by quagmire View Post
Prop 8 was directly voted on by the voters, the vote rights act wasn't. According to the decision, congress/president passed an unconstitutional law.

Now I disagree with him that SCOTUS doesn't have the power to overturn a law voted on by the voters. That is what the court system is there for. Protects the minority from laws passed by the majority.
Quick correction - this is about DOMA, not Prop 8. DOMA, like VRA, was passed by Congress and a President. Scalia apparently says the SCOTUS has no authority to rule on DOMA, but does have authority to rule on VRA, and it's not yet clear why he makes that distinction.
elistan is offline   5 Reply With Quote
Old Jun 26, 2013, 10:30 AM   #4
quagmire
macrumors 603
 
quagmire's Avatar
 
Join Date: Apr 2004
Location: Celestial Being
Quote:
Originally Posted by elistan View Post
Quick correction - this is about DOMA, not Prop 8. DOMA, like VRA, was passed by Congress and a President. Scalia apparently says the SCOTUS has no authority to rule on DOMA, but does have authority to rule on VRA, and it's not yet clear why he makes that distinction.
Oops. My bad. Then yes, Scalia is 100% contradicting himself.
__________________
Crimes against US History:
CV-6 USS Enterprise
Yankee Stadium
Penn Station-New York
quagmire is online now   3 Reply With Quote
Old Jun 26, 2013, 10:35 AM   #5
NewbieCanada
macrumors 68000
 
Join Date: Oct 2007
Quote:
Originally Posted by quagmire View Post
Oops. My bad. Then yes, Scalia is 100% contradicting himself.
You know how you said something in error, had the facts pointed out to you, corrected yourself and apologized?

Any chance you could teach Scalia how you did that?
__________________
nMP 6-core, D500, 32 GB, 1 TB rMBP 13" '13 2.4 gHz, 256 GB, 8GB Mini '11 i7, 256 GB SSD & 750 GB HDD, 16GB iPhone 5 64GB iPad Air 128
NewbieCanada is offline   5 Reply With Quote
Old Jun 26, 2013, 10:42 AM   #6
citizenzen
Thread Starter
macrumors 65816
 
Join Date: Mar 2010
Quote:
Originally Posted by quagmire View Post
Oops. My bad. Then yes, Scalia is 100% contradicting himself.
But even if you weren't wrong, I don't see how it would make a difference.

It isn't as if there is special consideration (as least IMO) given to laws passed by voter initiative versus that passed through a legislative body.

Each is just a different avenue through which laws can be created.

But neither is immune from court review.
citizenzen is offline   1 Reply With Quote
Old Jun 26, 2013, 10:46 AM   #7
quagmire
macrumors 603
 
quagmire's Avatar
 
Join Date: Apr 2004
Location: Celestial Being
Quote:
Originally Posted by citizenzen View Post
But even if you weren't wrong, I don't see how it would make a difference.

It isn't as if there is special consideration (as least IMO) given to laws passed by voter initiative versus that passed through a legislative body.

Each is just a different avenue through which laws can be created.

But neither is immune from court review.
I don't think there is a difference. As I stated in my first post, I think the SCOTUS does have the power to overturn the voters( in Prop 8 case).

But, if I wasn't wrong that could be the logic of Scalia( no matter how wrong he is). He thinks SCOTUS can only overturn laws the government passed, not the voters.
__________________
Crimes against US History:
CV-6 USS Enterprise
Yankee Stadium
Penn Station-New York
quagmire is online now   0 Reply With Quote
Old Jun 26, 2013, 11:02 AM   #8
citizenzen
Thread Starter
macrumors 65816
 
Join Date: Mar 2010
Quote:
Originally Posted by quagmire View Post
He thinks SCOTUS can only overturn laws the government passed, not the voters.
... government of the people, by the people, for the people ...
citizenzen is offline   0 Reply With Quote
Old Jun 26, 2013, 12:28 PM   #9
skunk
macrumors Demi-God
 
skunk's Avatar
 
Join Date: Jun 2002
Location: Republic of Ukistan
Pfft.
skunk is offline   2 Reply With Quote
Old Jun 26, 2013, 12:43 PM   #10
astrorider
macrumors 6502
 
Join Date: Sep 2008
Quote:
Originally Posted by citizenzen View Post
In his dissent to the decision to strike down DOMA, Justice Scalia writes ...



Yet he was just part of the majority that voted to invalidate a key part of the Voting Rights Act, another piece of "democratically adopted legislation".

Is Scalia contradicting himself?

Or am I missing something that helps to explain why his previous ruling wasn't likewise a Court error from the same diseased root?
Are you really arguing Scalia doesn't believe the Supreme Court has the power to rule legislation unconstitutional?

Quote:
We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”
That paragraph is a far cry from "the court doesn't have the power to invalidate democratically adopted legislation" as you imply. I'm no constitutional scholar, but the bolded parts seem to be where the explanation is needed.
astrorider is offline   1 Reply With Quote
Old Jun 26, 2013, 01:09 PM   #11
citizenzen
Thread Starter
macrumors 65816
 
Join Date: Mar 2010
Quote:
Originally Posted by astrorider View Post
Are you really arguing Scalia doesn't believe the Supreme Court has the power to rule legislation unconstitutional?
No. I'm not arguing that point at all.

My question is how does Scalia justify calling this decision an error, "spring[ing] forth from the same diseased root: an exalted conception of the role of this institution in America.”

Scalia is damning the institution and the role it plays in our political system. Yet this decision appears to me to be virtually the same as his own overturning of the Voter Rights Act.

I'm not arguing that the Court doesn't have the right to overturn laws. I'm asking how Scalia can call one ruling a symptom of disease while not seeing his own ruling in the same way.
citizenzen is offline   1 Reply With Quote
Old Jun 26, 2013, 01:15 PM   #12
skunk
macrumors Demi-God
 
skunk's Avatar
 
Join Date: Jun 2002
Location: Republic of Ukistan
Isn't overturning laws which are deemed unconstitutional one of the ultimate functions of the Supreme Court?
skunk is offline   1 Reply With Quote
Old Jun 26, 2013, 01:16 PM   #13
rdowns
macrumors Penryn
 
rdowns's Avatar
 
Join Date: Jul 2003
The day after he struck down a law that was passed unanimously in the Senate, and nearly unanimously in the House, Scalia opined that the Court had no right to subvert the democratic will of the people by overturning the hotly-contested Defense Of Marriage Act.

If this isn't hypocrisy, what is?
__________________
The distance in time between 1980 and now is the same amount as the distance in time between 1980 and WWII.
rdowns is offline   3 Reply With Quote
Old Jun 26, 2013, 01:21 PM   #14
citizenzen
Thread Starter
macrumors 65816
 
Join Date: Mar 2010
Quote:
Originally Posted by rdowns View Post
If this isn't hypocrisy, what is?
I'd love to hear him explain it.

I'm sure he has his reasons.
citizenzen is offline   0 Reply With Quote
Old Jun 26, 2013, 01:24 PM   #15
QCassidy352
macrumors G3
 
QCassidy352's Avatar
 
Join Date: Mar 2003
Location: Boston, MA
Of course he knows the court can invalidate democratically adopted legislation. He's saying the court had no power to do so in this particular case. Hypocrisy is the wrong word. He just thinks the court had the power to act in one case but not the other. But yes, it was silly to point out that DOMA was democratically adopted, since that's true of all laws.
QCassidy352 is offline   0 Reply With Quote
Old Jun 26, 2013, 01:55 PM   #16
astrorider
macrumors 6502
 
Join Date: Sep 2008
Quote:
Originally Posted by citizenzen View Post
I'd love to hear him explain it.

I'm sure he has his reasons.
This article has some choice quotes regarding Scalia's rationale, made before today's decision:
http://www.lifesitenews.com/news/sca...ing-decided-by
Quote:
As the Supreme Court prepares to rule this week on the legality of federal and state bans on same-sex “marriage,” Justice Antonin Scalia has said there is no “right to homosexual conduct” granted by the United States Constitution.


Scalia, 77, told an audience of lawyers and judges at the North Carolina Bar Association Friday that matters of morality should be decided by the public, not unelected judges who set themselves up as “moral arbiters.”

According to Scalia, moral issues such as gay marriage have no “scientifically demonstrable right answer” and thus have no business being decided by the court. Instead, society must determine as a whole what they deem moral and acceptable and make laws that reflect that.

Scalia made his point with humor, joking that as a judge, “I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged.” But, he quickly added, “Rather, I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges.”

Scalia, a 1986 appointee of President Reagan and now the longest-sitting member of the high court, has long maintained a strictly originalist view of the Constitution, insisting that it must be interpreted through the lens of its authors’ intentions. He once told an audience at Southern Methodist University that far from being a “living document,” the Constitution is, “dead, dead, dead.” On Friday, he told the North Carolina lawyers that judges who find rights to “homosexual conduct” or abortion in the Constitution are in error.

“When the Constitution was adopted, all those acts were criminal throughout the United States and remained so for several centuries,” said Scalia. In particular, he cited “laws against private consensual sodomy … that existed in perfect conformity with the Constitution for over 200 years.”

He slammed the Court’s 1973 Roe v. Wade decision legalizing abortion as an egregious example of judicial moralizing he believes was rooted in a flawed vision of the Constitution as a living document.

He expressed a similar sentiment in a 2011 interview with California Lawyer, saying “You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law.”

“That’s what democracy is all about,” added Scalia. “It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
astrorider is offline   0 Reply With Quote
Old Jun 26, 2013, 02:05 PM   #17
iMikeT
macrumors 68020
 
Join Date: Jul 2006
Location: California
Two words: Judicial Activism
iMikeT is offline   0 Reply With Quote
Old Jun 26, 2013, 02:33 PM   #18
elistan
macrumors 6502a
 
Join Date: Jun 2007
Location: Denver/Boulder, CO
Quote:
Originally Posted by astrorider View Post
This article has some choice quotes regarding Scalia's rationale, made before today's decision:
http://www.lifesitenews.com/news/sca...ing-decided-by

Quote:
As the Supreme Court prepares to rule this week on the legality of federal and state bans on same-sex “marriage,” Justice Antonin Scalia has said there is no “right to homosexual conduct” granted by the United States Constitution.


Scalia, 77, told an audience of lawyers and judges at the North Carolina Bar Association Friday that matters of morality should be decided by the public, not unelected judges who set themselves up as “moral arbiters.”

According to Scalia, moral issues such as gay marriage have no “scientifically demonstrable right answer” and thus have no business being decided by the court. Instead, society must determine as a whole what they deem moral and acceptable and make laws that reflect that.

Scalia made his point with humor, joking that as a judge, “I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged.” But, he quickly added, “Rather, I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges.”

Scalia, a 1986 appointee of President Reagan and now the longest-sitting member of the high court, has long maintained a strictly originalist view of the Constitution, insisting that it must be interpreted through the lens of its authors’ intentions. He once told an audience at Southern Methodist University that far from being a “living document,” the Constitution is, “dead, dead, dead.” On Friday, he told the North Carolina lawyers that judges who find rights to “homosexual conduct” or abortion in the Constitution are in error.

“When the Constitution was adopted, all those acts were criminal throughout the United States and remained so for several centuries,” said Scalia. In particular, he cited “laws against private consensual sodomy … that existed in perfect conformity with the Constitution for over 200 years.”

He slammed the Court’s 1973 Roe v. Wade decision legalizing abortion as an egregious example of judicial moralizing he believes was rooted in a flawed vision of the Constitution as a living document.

He expressed a similar sentiment in a 2011 interview with California Lawyer, saying “You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law.”

“That’s what democracy is all about,” added Scalia. “It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Someone help me understand - is he saying the only rights we have are ones that are specifically granted to us by the Constitution? That anything and everything can be regulated by law so long as the regulation doesn't directly contradict something in the Constitution? Okay, I suppose - for example, a municipality can ban cigarettes in public places even though they aren't mentioned at all in the Constitution as not being a right. Anybody know what his feelings are on the equal protection clause of the 14th?
elistan is offline   0 Reply With Quote
Old Jun 26, 2013, 02:44 PM   #19
CaptMurdock
macrumors 6502a
 
CaptMurdock's Avatar
 
Join Date: Jan 2009
Location: The Evildrome Boozerama
At times like this, I find it hard to believe even Saint Ronnie the Senile was dumb enough to appoint this hack to the Supreme Court.

Big Tony Slams 'Legalistic Argle-Bargle', Reargues 'Homosexual Sodomy' in Dissent

"Argle-Bargle?" Is that a quote from Cicero, Tony? Or from a brief by Oliver Wendell Holmes?

Yyyyikes.
__________________
13" MacBook, 2.4 GHz, 4 GB RAM, 320 GB HD, OS 10.9.2 | iPhone 4, 32 GB, iOS 7.1
"I got no reason, it's all too much/You'll always find me out to lunch"
CaptMurdock is offline   0 Reply With Quote
Old Jun 26, 2013, 02:52 PM   #20
iMikeT
macrumors 68020
 
Join Date: Jul 2006
Location: California
The two political shows I was listening to this morning touched on this.

Yes, Scalia contradicted himself. There is no consistency with a person like him. What he said yesterday and today is him trying to have his cake and eating it as well.
iMikeT is offline   0 Reply With Quote
Old Jun 26, 2013, 03:30 PM   #21
splitpea
macrumors 6502a
 
Join Date: Oct 2009
Location: Among the starlings
Quote:
Originally Posted by elistan View Post
Someone help me understand - is he saying the only rights we have are ones that are specifically granted to us by the Constitution? That anything and everything can be regulated by law so long as the regulation doesn't directly contradict something in the Constitution?
The Bill of Rights directly contradicts this interpretation, and if you read the Federalist Papers, that was a major concern of those who drafted it and the Constitution.

Quote:
Originally Posted by Bill of Rights
Amendment IX

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

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
__________________
What's the point of a sig showing the system I owned in 2006?
splitpea is offline   1 Reply With Quote
Old Jun 26, 2013, 04:43 PM   #22
shinji
macrumors 6502a
 
shinji's Avatar
 
Join Date: Mar 2007
Scalia is a bigot and a liar. Rehnquist 2.0.
shinji is offline   1 Reply With Quote
Old Jun 26, 2013, 05:41 PM   #23
elistan
macrumors 6502a
 
Join Date: Jun 2007
Location: Denver/Boulder, CO
Quote:
Originally Posted by splitpea View Post
The Bill of Rights directly contradicts this interpretation, and if you read the Federalist Papers, that was a major concern of those who drafted it and the Constitution.
Yeah, that was what I was thinking - I don't quite understand his justification.
elistan is offline   0 Reply With Quote
Old Jun 26, 2013, 05:47 PM   #24
robanga
macrumors 68000
 
robanga's Avatar
 
Join Date: Aug 2007
Location: Oregon
I don't get his statement. One of the reasons the court exists is to protect us against unconstitutional legislation. Whether the law was created by elected officials based on their intentions or the voters referendum, does not really make a difference.

Can someone in the profession suggest what he was getting at here?
__________________
Soli Deo gloria
robanga is offline   0 Reply With Quote
Old Jun 27, 2013, 01:26 AM   #25
jnpy!$4g3cwk
macrumors 6502a
 
Join Date: Feb 2010
Quote:
Originally Posted by elistan View Post
Yeah, that was what I was thinking - I don't quite understand his justification.
Scalia is a textualist who is saying that the original meaning of the Constitution defined a very limited role for the courts, and, all other things being equal, the original meaning prevails. Except when something contradicts Scalia's conservative social views, in which case an activist court is called for.

In all seriousness, I'm not sure "hypocrisy" is precisely the correct word. Scalia is an entertaining raconteur who is good at rationalizing his personal feelings. Most justices will claim to be textualists or originalists, yet, given a specific case, they come to very different conclusions, depending perhaps on their temperaments among other things. David Souter was my idea of a justice with "judicial temperament".
jnpy!$4g3cwk is offline   1 Reply With Quote


Reply
MacRumors Forums > Mac Community > Community Discussion > Politics, Religion, Social Issues

Thread Tools Search this Thread
Search this Thread:

Advanced Search
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 09:50 AM.

Mac Rumors | Mac | iPhone | iPhone Game Reviews | iPhone Apps

Mobile Version | Fixed | Fluid | Fluid HD
Copyright 2002-2013, MacRumors.com, LLC