Monday, November 16, 2015

Scalia on Judicial Supremacy

Well, friends, what an evening! Justice Scalia was sparkling. I have had the privilege of conducting public dialogues with him on several occasions, and he has always been impressive. But tonight he was at his absolute best. The 600 members of the Union League who gathered for the discussion heard his candid opinions on a range of topics. Unfortunately, it was not videotaped. Here, however, are some highlights.
I asked him how the Constitution seeks to protect liberty and prevent tyranny. He rejected the idea that the main mechanism is the Bill of Rights. Rather, he opined, it is the structures that divide powers between the national goverment and the states, limit the powers of the national government to those delegated and enumerated, and separate powers in a system of checks and balances.
He lamented the unwillingness of Congress to guard its powers against encroachments by the executive and judicial branches.
He declared federalism to be dead---having been killed by the direct election of U.S. Senators, which deprived the states of their mechanism for resisting federal encroachments and usurpations.
In the evening's most important comment, he declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution. Without prompting from me, he cited Lincoln's treatment of Dred Scott. As it happened, I had a copy of Lincoln's First Inaugural Address with me (you never know when you'll need it), so I read Lincoln's words on the case to the audience.
Justice Scalia strongly and colorfully condemned the Obergefell ("same-sex marriage") ruling and the self-contradictory theory of "substantive due process" on which it (and a number of other controversial decisions, including Roe v. Wade) rests. He echoed the severe criticism of the decision that he announced in his dissenting opinion.
He also strongly condemned the Supreme Court's "establishment clause" jurisprudence on the ground that there is no textual or historical basis for the Court's claim that laws and policies must be neutral not only between different religions, but also between religion and non-religion.

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