Comments for: “Betraying Jefferson: UVA Award To Scalia Undercuts Third President’s Principles”

“Scalia asserted that Jefferson never intended to keep religion completely out of the public sphere. Jefferson, he said, mentioned a deity in the Declaration of Independence and the Virginia Statute for Religious Freedom.”
http://www.dailyprogress.com/c.....ate/13793/

Shame on you, Justice Scalia. Those who have studied and admired the thinking of Thomas Jefferson know better than to believe your stretch of truth. Religion to Thomas Jefferson, if not scoffed at, was an entirely private affair. Private, not public.
“Say nothing of my religion. It is known to my god and myself alone.”
- Letter to John Adams, 11 January 1817
Happy Birthday, Mr. President.

“Justice Antonin Scalia, who once banned broadcast media from covering his acceptance of an award for supporting free speech…”

“He said the public wants judges willing to rewrite the Constitution, not interpret it narrowly based on its original intent, as Scalia supports.

He said the Constitution doesn’t cover all the topics the public cares passionately about, like abortion…”

No, Your Honor, only a select group of people want you to rewrite the Constitution.

Lying S.O.B.

Unbelievable, unfit-for-service shyster.

I hate to open this Pandora’s box, but should we get a Democratic president and a stronger Democratic majority in the Senate, I think we need to physically remove a Supreme Court shyster or two.

(Of course, the right wing will whine that we’re “politicizing the judiciary.”

No, we’re de-politicizing it. Let’s be perfectly clear.)

So often, revisionists claim no ‘wall of separation.’ Here is Mr. Jefferson AGAIN, this time to the Virgina Baptists, reiterating the ‘wall of separation’:

“Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the “wall of separation between church and state,” therefore, is absolutely essential in a free society.
We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries.”

I become nauseous when I see David Barton, and others, distorting the views of the founders, most especially Thomas Jefferson. He has left behind an abundance of documents; why the steeple sheeple people don’t bother to do some research for themselves is beyond me?

Thomas Jefferson was a freethinker, a rationalist, the very antithesis of what calls itself Christianity. A ‘learned’ man such as Antonin Scalia surely knows this, right? Right?

Yeah, he knows it. That’s why I went the distance with the lying accusation.

Here’s another link that give more details:

http://www.dailyprogress.com/c.....ate/13793/

I would think that reasonable people would now expect the honorable justice to recuse himself from future church-state hearings since his bias is declared?

Personally, given other anti-constitutional remarks Scalia has made, I think he should be impeached.

I’m a UVa grad (College ‘72) and life member of the Jefferson Literary and Debating Society and the Alumni Association.

I agree with Lauren that the University betrayed its founder, Mr. Jefferson, by awarding Justice Scalia its Thomas Jefferson Medal in Law.

This action demonstrates the abyss to which our legal system as fallen.

And as an attorney who practices in the field of church-state law, in my opinion, Justice Scalia is undeserving of a seat on the Court for his failure to uphold the original intent of the Constitution and the Bill of Rights.

Seriously, this is why we don’t let people who don’t understand the law make decisions regarding the law. You all have absolutely no idea what Constitutional interpretation is about.

“If you want to enact a statute that says the president can never say ‘God bless America,’ then I have no problem with that,” he said. “Just don’t tell me that the Constitution prohibits it.”

Try READING the Virginia Statute of Religious Freedom, authored by Jefferson

” Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;”

We grant judges life tenures for the very insane liberal impeachment nonsense that gets spewed. Don’t like the way a Justice goes about interpretating the Constitution? Get rid of him and find someone that will write the Constitution the way YOU want it to be written. Way to prove Scalia’s point.

No, YOU don’t know the first thing about Constitutional interpretation, Jerk..er.. Jake.

Tell me, O brilliant lawyer, how do you square Lauren’s call, to wit:

“I don’t think Jefferson would accept Scalia’s observation in McCreary County v. ACLU of Kentucky, that it is “entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

…with the First and Fourteenth Amendments?

It’s one thing to disagree on interpretaion.

It’s quite another to deman the removal of an official who knowingly, willfully, and provably disregards the law he is entrusted to uphold.

By YOUR illogic, we’d be wrong to seek the removal of an Attorney General, Distrrict Attorney, etc., who refused to prosecute crimes against Blacks.

You crazy left-wing socialists!
I find absolutely no concrete evidence mentioned in the article on the comments on Jefferson’s view of allowing religion in the government. The one fundamental flaw that all the negative comments about justice scalia is that they fail to recognize that religion, does not mean Christianity. In the Jefferson memorial in DC Jefferson is quoted as saying, “All liberties are granted from GOD!” The argument that Jefferson intended religion to be private is frivolous. Of course, Jefferson made no attempt to force religion on the populous. What he intended, by all his comments on the separation of Church and State is that no religion should be required of the people by the government. He did not say, and never implied that there was no place for religion in the public arena. I think it is funny that left-wingers are so confused about the constitution. To say that the constitution covers all rights shows a complete inability to understand the intention of the framers of he constitution. In fact, Madison admits that, just because some rights are enumerated in the constitution, that is not meant to intend that those are all the rights of the people. Additionally, I find it amusing that some left-wing nutter doesn’t want the constitution re-written when the separation of church and state was not written into the constitution but rather was accepted by a liberal court!

Initially over 20 years ago, and four times since, I raised my right hand and swore to defend the Constitution of the United States against all enemies, foreign and domestic, and to also obey the orders of the officers appointed over me.

As an active duty Senior Master Sergeant in the United States Air Force, I’m deeply troubled by the evident contradiction between our national leaders’ words and actions, and our core governing document.

I ask, when faced with contradictory orders, which am I to follow?

I will, of course, do what I’m told, but at what point does my voice of dissent become “treasonous”?

I expect I’ll know if I’m euphemistically “forced to retire”, during a hypothetical “Military Spiritual Realignment Strategy”. Until then, I’ll continue to speak out, and refuse to wear a badge that states, “I pledge…to be spiritually ready” (not hypothetical).

Hear hear! Now here is a man who truly serves his country! Thank you sir!

There are times that I feel you’re a dying breed, slowly being replaced by people who are swearing instead to serve their god on the battlefield, moreso than their country. Once we begin serving gods rather than countries on the front lines, we are no better than the Middle Eastern countries that we criticize.

Please tell me that my perception is wrong, and that most of our Armed Forces still put America — all of us — first.

RE: You crazy left-wing socialists

I’m a crazy left-wing socialist because I DON’T want the government running my life? That’s just plain weird!

RE: one fundamental flaw

Everyone who posts on this site knows that religion does not mean Christianity, and we also know that “Christianity” is composed of various, often incompatable, sects.

The question is, does Scalia know it?

Try reading the opinion in context. The Framers incorported prayer, the including of “May God bless America”, etc into the original practices of the nation. How do those things NOT exclude athiests and monothiests by there very definition of praising a singular diety? Scalia is not saying the establishment clause can be used against athiests or monothiests, he is simply saying it is completely false to say the constitution forbids such practice as prayer before sessoins of Congress. SEE MARCY v. CHAMBERS

“It’s quite another to deman the removal of an official who knowingly, willfully, and provably disregards the law he is entrusted to uphold.”
Again, this is why we don’t let people who don’t understand the law interpret it. Constitutional Interpreation (KEYWORD INTERPRETATION) isn’t black letter law. The Supreme doesn’t get the luxury of looking to a reference guide that says “Do this, this, and this.”

Again, David. Go to law school. Then you can discuss constitutional interpreation and the role of the judiciary with me. Your analogy to prosecutors is completely ridiculous and demonstrates a lack of understanding as to what the Supreme Court does.

Again, David, if you can point out HISTORICAL PRACTICES that contradict what Scalia is saying, please, by all means try to. Find me where a President had said a prayer to multiple dieties, and then explain to me how an athiest or monothiest WOULDNT feel left out.

Correction: Marsh v. Chambers

Cute. Of course, not one word that you wrote refustes one word that I wrote.

You attempted instead an ad hominem logical fallacy, claiming that my arguments is invalid because of who I am, not what I said.

You know perfectly well that we’re right, or you’d be refusting our arguments rather than trying to refute us.

“Shame on you, Justice Scalia.”

Let Tony take that! I’m sure he’ll be so hurt he’ll change his philo.

“Lying S.O.B.
Unbelievable, unfit-for-service shyster.”

I didn’t know that article even mentioned Barry Lynn.

“…the University betrayed its founder, Mr. Jefferson, by awarding Justice Scalia its Thomas Jefferson Medal in Law.”

Maybe so. I don’t think Scalia has enough opposition to women in government to be on par with Jefferson.

[Somehow my "S" key thinks it belongs embedded in the word "refutes..."]

Cute. Of course, not one word that you wrote refutes one word that I wrote.

You attempted instead an ad hominem logical fallacy, claiming that my argument is invalid because of who I am, not what I said.

You know perfectly well that we’re right, or you’d be refuting our arguments rather than trying to refute us.

BTW, nice of Bob Ritter to show up. Jake can’t give himself the conforting excuse to dismiss what he says because of who he is.

You’re out of dodges and excuses here, hotshot.

Scalia believes that the death penalty cannot be “cruel and unusual punishment” simply because it was not considered cruel and unusual in 1791. He believes that anti-sodemy laws are constitutional simply because homosexuality was against the law in 1791. He believes there cannot be a “right to abortion” embedded in the Fourteenth Amendment because states still outlawed abortion when the Amendment was ratified.

And, of course, the equal protection clause not only did not prevent racial discrimination after the civil was, it was explicitly designed to ALLOW for it! So racial discrimination MUST be constutional to this day!

And because people prayed before legislative sessions in 1791, it simply cannot be considered uncostitutional. Never. Ever. No Way!

I guess our ethical sesibilities just can never advance beyond 1791.

Steve R, welcome to the 21st century. Try to get hip to it.

What’s funny, Alan, is many of these people think Scalia is a “strict constructionist.”

Come on, Jake, make my day.

Apparently, I’m a left wing nutter! That being established let me post part of Scalia’s comments:

The idea that the Constitution demands that God must be completely kept out of government is bunk, he said. Prayer begins legislative sessions and the convening of court, he pointed out. American currency says “In God We Trust,” he added.
“All sorts of things just shout out ‘It’s a lie! It’s a lie!’” he said. “That’s what I’m disturbed about.”

I will humbly accept the point that I’m not an attorney, but Scalia’s assertion here seems little more than bar room bluster of the we’ve-always-done-it-that-way type.

Scalia has reportedly said in public speeches that god’s law is superior to human law. Now last time I looked, the constitution he swore to uphold started with “We the people…”

Perhaps attorney Jake can help me with a couple of issues:

1. Given what Scalia said, should he recuse himself from future church-state cases because of his declared bias.

2. If the issue of “under god” in the pledge comes before the court, will the overwhelming evidence that it was put in for religious reasons be trumped by Scalia’s apparent establishment-by-tradition logic (above)?

“…the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

Judge Scalia’s narrow-minded interpretation of the First Amendment is truly troubling. Clearly, it was never Jefferson’s intent that government disregard any American citizen on the basis of religious beliefs or the lack thereof. One of the Jefferson quotes provided via the article’s link says:

‘“Our laws have applied the only antidote to [religious intolerance], protecting our
religious, as they do our civil, rights by putting all on equal footing. But more remains to be done, for although we are free by the law, we are not so in practice. Public opinion erects itself into an inquisition, and exercises its office with as much fanaticism as fans the flames of an Auto-da-fé.”
–Letter to Mordecai Noah, May 28, 1818
(an Auto-da-fé is the public burning of a heretic)’

(emphasis added)

The last line of this quote is incredibly prescient of the current fires burning today regarding religious liberty. Judge Scalia’s blatantly anti-American comments add fuel to this fire. The RR’s constant assumption that all “others” are undeserving of equality is reprehensible. It’s worrisome, to say the least, to hear such sentiments expressed by a US Supreme Court Justice.

Paul Bailey, please accept my gratitude for your service to this country and for continuing to stand up for your rights.

J, you’ve sunk to a new low of adding nothing of value to the discourse.

Alan, David, Jax, Bob, Jimbo–thanks for stickig it to Jake and Steve R.

Paul Bailey, thank you for serving your (our) country. I hope you never have to find the answer to that question.

I seem to be needing the 2-by-4 a lot lately… It sure isn’t bringing out my best side, but sometimes ya gotta do what ya gotta do.

Anyhow, one more swing of the 2-by-4 for Steve R, to wit:

“Additionally, I find it amusing that some left-wing nutter doesn’t want the constitution re-written when the separation of church and state was not written into the constitution but rather was accepted by a liberal court!”

Nevermind the small minds of bigots who use “liberal” as some damm dirty epithet even where it isn’t applicable, but:

Reynolds v. United States, 1878. The separation of church and state was emphatically and explicitly affirmed by what was, in fact, a very conservative court.

http://www.law.umkc.edu/facult.....dsvus.html

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.” Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”

- Chief Justice Waite, Reynolds v. United States, 1878.

Lauren, great article. Thanks!

We Americans have every right to expect the highest standards humanly possible from the members of the Supreme Court. Scalia, for all his faux scholarship, is nothing more than a religious bigot. Thomas, no better along with being a bald-faced liar. (In his confirmation hearings, Thomas said he had never considered Roe v. Wade, yeah, sure!) Certainly, they are only men and women with the prejudices people sometimes have, but for that job, we are right to expect men who seek to find justice for all, not use the job as a platform to promote their pet religion.

Well, Above Us Only Sky, being that Scalia is Thomas’ golden calf of an idol, it would explain some things. (Paraphrased) Scalia has said to offer Congress barely an answer on opinions during confirmation hearings, then when minds change during actual SC sessions, no one can say you’re an actual hypocrite.

Steve R said: “I find absolutely no concrete evidence mentioned in the article on the comments on Jefferson’s view of allowing religion in the government…In the Jefferson memorial in DC Jefferson is quoted as saying, “All liberties are granted from GOD!””

Ummm, here’s a suggestion. READ some of what Jefferson has written (hint: via archived documents, letters) re: religion in govt, and not “an article.” Then come back with something of substance. Better to be silent and thought a fool, than to open your mouth and remove all doubt. Have you a citation for your quote, and if so what is the proper context of the quote? Jefferson, and many other deists of his time referenced god, Nature’s God. Raise a brow?

Paul Bailey - thank you isn’t enough. That you can even question (even if only in your mind, for now) the discrepancies between your “leaders” and the Constitution of our United States makes you a patriot of patriots.

Jefferson’s God promised the right to life, liberty, and the pursuit of happiness.

Whatever god this is, it sure as hell isn’t the Religious Right’s god.

Jake said: The Framers incorported prayer, the including of “May God bless America”, etc into the original practices of the nation.

And as I asked another, please provide citation for your assertions.

Steve R,

Not all those who support C/S separation are conservative. Sorry, but it just plain ain’t so.

You point out that inscriptions in the Jefferson Memorial mention God. He did not pick these quotes and would likely have chosen others. I would also point out to you that Jefferson did choose his tombstone epitaph and requested that three things be listed. He chose his authorship of the Declaration of Independence, his authorship of the Virginia Statute for Religious Freedom and his founding of the University of Virginia. His inclusion of the Virginia Statute says a lot about his views on government entanglement with religion. If you haven’t read it, it would do you well.

Also troublesome is your statement:

“In fact, Madison admits that, just because some rights are enumerated in the constitution, that is not meant to intend that those are all the rights of the people.”

This is kind of strange coming from a Scalia fan. Your statement would imply that perhaps a “right to privacy” could be present if claimed by the people. Scalia, as you should know, would deny this. If fact, per Scalia, if it ain’t listed, it ain’t there. Seems to me that Scalia is one of those “activist”judges, ignoring original intent and doing whatever he wishes. While you may “think it is funny that left-wingers are so confused about the constitution” it is clear to me that, in this case, it is you who needs some clarity.

Last post, 1st paragraph should have read “Not all those who support C/S separation are liberal”

I prayed I wouldn’t make a mistake but as usual, no luck. Proofreading might be more effective.

Betraying Jefferson

Sorry for that last post. It was intended to go elsewhere. (hee hee.)

I ask for citations for some of Jefferson’s supposed words, because as we know the RR has a penchant for twisting, turning, and quoting out of context. As a matter of fact, Steve has indeed misquoted the actual inscription, and I feel confident that he cannot place it in proper context.

I often feel that there are fundie lurkers everywhere. Perhaps, the timing is because it’s Mr. Jefferson’s birthday (perhaps) but World Nut Daily has posted an article on Jefferson and the misuse of separation of church and state. I think it’s funny, that they should still be trying to claim him as intending to endorse their ideals of a church state. For anyone interested:
http://worldnetdaily.com/index.....geId=61341

Sky, Jax, all, good posts.

Ablatross:

Marsh v. Chambers, 463 U.S. 783: The central holding is that prayer before legislative sessions can be funded by the government because the nation has a history of such actions. On page 787 of the opinion, a historical analysis begins, and I quote:
“The tradition in many of the colonies was, of course, linked to an established church,FN5 but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain”…continuing.. “The First Congress, as one of *788 its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee “to take under consideration the manner of electing Chaplains.”

Additionally, for anyone who wants to blather on about this nonsense that Scalia doesn’t uphold the constitution or doesn’t support your liberty, why don’t you try reading Crawford v. Washington, one of the most HATED cases by prosecutors since it overturned Ohio v. Roberts and forced law enforcement to follow the 6th amendment. Majority opinoin written by Scalia.

The bottom line is that anyone who thinks Scalia wants to turn this country into some fanatical Christian society is gravely mistaken. Scalia is a devout Catholic, not exactly the poster child for the “religious right.” What Scalia wants is for the Constitution to not be perverted into something it never said or never meant. While you may disagree with him, that is hardly any reason for nonsensical calls for impeachment. The fact of the matter is that Constitutional interpretation has viewpoints and theories just like anything else that operates on such a complex scale. i.e. international relations. You may disagree with him, but you should understand and respect where he’s approaching it from.

As I quote Senator HARRY REID, “I cannot dispute the fact, as I have said, that this is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute. ”
http://www.msnbc.msn.com/id/6646457/

Actually, Jake, my comments were to Steve R., who is attempting to suggest that Jefferson’s own words (waiting for citations)promote a view that govt and religion were never intended to be separated. I disagree heartily.

I also did not suggest impeachment of Scalia, nor did I “blather” about Scalia upholding the Constitution, though I hardly think “tradition” fits neatly in, and this is what Scalia upholds. I believe the Constitution was written in such a way as to accommodate changing times.

Now, I’ll ask you again, to show me where the framers incorporated ‘May God Bless America’ and how that was meant to exclude certain peoples? In the materials I’ve read about the founders, I find that the biggest problem is that there is an attempt by the religious to make the ‘creator’ or nature’s God, the biblical God. I’m not sure that would be an accurate assessment of the religious ideas of the framers of the Constitution.

Finally, as Mr. Jefferson assured, I am entitled to my opinion, and my opinion is that of all of the SC justices, Antonin Scalia is the least representative of the ideals of Thomas Jefferson.

I apologize, I was not referring to you directly as the impeachment statement, but to others on this board.

First, my statement on “May God Bless America” was in not a specific reference but a general one to the prayers, changing of the oath of office by Washington to include “So help me God”, etc, but the bigger issue is that you’re confusing both what I said and what Scalia said. Scalia did not say the Constitution MEANT or INTENDED to disenfranchise certain religious groups. He’s saying, de facto, that the Framers were DOING this themselves by the traditions, which I previously cited, which seemed to only acknowledge monotheistic religions. Scalia is not trying to say that the establishment clause can be used against athiests, or Hindus, but not Christians. That is a question that has never come up and I think his sense of equity would surely not allow for such a proposition. The question that DID come up, as in the Marsh court, was whether or not the framers INTENDED to prevent legislatures, the President, etc., from invoking not a CHRISTIAN God or a JEWISH God, but a general singular God if the phrase “May God Bless America” was used. Scalia is AGREEING with you when you discuss the differences in the framer’s ideas between a creator and the Biblican God. I believe that Scalia would have an establishment clause issue with a legislature invoking “May Christ Bless America.” Scalia is not trying to turn this nation into a Christian nation. He is a staunch scholar of history and feels, as he said at the UVA speech, that if Congress wants to ban “May God Bless America” from ever being said, then go for it, but that’s something for Congress to decide, not Justices, because he doesn’t believe the Framers intended for our country to be ONE (as he cited almost every other European country), where such a phrase CANNOT under their constitutions be used.

The case may have turned out differently had a particular religion been used. I fully understand why Scalia’s comment there can be seen as so controversial, because it’s very confusing to put the pieces together from the rest of the context of that opinion, to which the author of the article did not post. Taking someone’s statement out of context, any politicans, would lead to some distraous results. Jefferson, Scalia, Clinton, Reagan, etc. have all made statements which, read solely, would seem to indicate they support the disenfranchisement of entire groups.

“I believe the Constitution was written in such a way as to accommodate changing times.”
This is just another form of Constitutional interpretation. Scalia would say you’re wrong, and Stevens would say you’re right. Scalia believes that the Constitution is what it is, and that we have a process setup to allow for the accomodation of changing times: the amendment process, which should be used. He doesn’t feel that Nine men and women in robes should be making the law, when a democratically elected Congress has been empowered by Article II of the Constitution to do such.

Again, I apologize if you felt that my comments were a direct attack on you, as they were not.

Scalia, Thomas, and Bork’s doctrine of “original meaning” is a dangerous interpretive principle that would undermine our rights and liberties. Rather than building on the BEST of the 18th century, it would mire us in the WORST that then existed. Combined with Thomas’s disdain for precedent (which Scalia, at least, is respectful of) it would literally allow individual states to establish official religions and force their “citizens” to attend the services.

As noted, the 14th amendment’s equal protection clause was deliberately crafted to allow African Americans to vote without, however, going so far as to allow them equal rights with white Americans. Equal protection does not “originally mean” equal rights. And, of course, in the years after the civil war, the 14th amendment did not protect the black population from racial discrimination. It was not until Thurmond Marshall’s generation that African Americans were accorded equal rights under the constitution.

The doctrine of original meaning would clearly invalidate the reasoning that allowed the court to hold that racial discrimination is unconstitutional. To say it again, equal protection did not “originally mean” equal rights for African Americans.

The fact that the court is interested in the original meaning or intent of the constitution in specific cases does not make it an overriding or definitive argument for some interpretation or another. The citing of it in a particular case does not mean that legislative prayer cannot, in the future, be held unconstitutional by the court. And the original intent or meaning will not satisfy those of us who have to face bigotry and intolerance, as, for instance, displayed only recently by Monique Davis.

Giving Scalia an award in Thomas Jefferson’s name is an absurdity. He a danger to, not a protector of, our rights and liberties.

Several areas where I belive it can be shown that Scalia is lying:

He says that it’s not the job of judges to shape the culture — yet by relying on his “originalist” apprroach, and his reliance on “tradition,” he is indeed importing and imposing a set of cultural attributes that the text of the Constitution does not itself contain.

A true culturally neutral strict interpretation would take the words at the purest face value possible. It would make no attempt to read into the Religion clauses a connotation of the word “religion” that dates from a bygone era.

The Constitution’s religion clauses would stand on the words themselves, not any externally imported connotation.

So, Scalia is lying when he says that judges shouldn’t decide cultural issues — when he himself imports a bygone cultural era into legal precedent.

BTW, speaking of precedent, doesn’t our present set of case law precedent constitute a tradition as well? Didn’t Scalia selectively disregard tradition when he tore away almost three decades of legal tradition — Employment Division v. Smith 1990 — the tradition known as the Sherbert-Yoder doctrine?

That was legal tradition that has become a big part of American tradition. And Scalia blew it away.

So, by his selective appeals to, and selective disregard for, tradition, it can only be concluded that he is deliberately imposing a particular bygone culture — thus making lies of his claims not to do so.

On Scalia wilfully refusing to uphold the Constitution even while recognizing that rights exist:

Troxel v. Granville, 2000
http://caselaw.lp.findlaw.com/.....vol=99-138

“In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.”

Scalia explicitly acknowledges that “right of parents to direct the upbringing of their children” is among the unalienable rights covered by the Ninth Amendment — yet he goes on to explicitly refuse to uphold that inalienable right.

There. Scalia has openly acknowledged the existence of an unalienable right, and purposefully refused to uphold it on behalf of the plaintiffs who claim exactly that right.

“It’s water over the deck. Get over it.” Scalia on Bush v. Gore.

SCOTUS was over the line. Sandra Day O’Connor surprised me far more than Scalia ever could.

Does anyone know about Scalia’s son working for the law firm that represented Bush in Bush v. Gore? Wouldn’t that be enough for Scalia to recuse himself??

Albatross, thanks for the WorldNetDaily link. Worrisome stuff.

It is almost as if they are saying “two wrongs make a right”. Jefferson made statements about adhering to C/S separation that he himself did not consistently follow. The founders were politicians, imperfect and vain. Certainly human. The fact that Jefferson may not have behaved perfectly on all issues will always be a distraction and nothing more. Separation is a pretty lofty and enlightened principle. No man, even Jefferson given the context of his time, could have stayed within the limits of complete separation.

Sky, I am presently reading Finding Jefferson: A Lost Letter, A Remarkable Discovery, and The First Amendment in an Age of Terrorism, by Alan Dershowitz. It’s a great read. Jefferson saw freedom of speech and association as intricately woven with the religious freedom clauses, and yet he was not such an absolutist when language could be shown to be the cause of inciting a violent act.

As to WND, I believe that they have (as usual) cherry-picked much of what Jefferson said, applied it out of context, and “made” it fit their case.

Jake, our Constitution was debated, and “created” without the benefit or “blessing” of any clergy.

Hey Jake, here’s the continuation of the Virginia Statute of Religious freedom.

“…but to extend it by its influence on reason alone; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time: That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; … that our civil rights have no dependance on our religious opinions, any more than our opinions in physics or geometry; … that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous falacy [sic], which at once destroys all religious liberty … ”
http://en.wikipedia.org/wiki/V.....us_Freedom

Sections II and III are equally fascinating, as is the original draft, which contained words obviously deleted. That recommended read did little to support your position of Scalia being a Jeffersonian model worthy of the award.

Justice Scalia, a devout Catholic, as you pointed out, is the closest thing on the SC known to the religious right (but for the issue of the Saints), but the furthest from the mindset of Thomas Jefferson. Why do you take issue with what some consider an affront to the character of TJ? Is there some reason you’d like him to be your poster boy for Scalia?

BTW all, Federer, who wrote the World Nuts Daily article that I linked to, is as equally suspect as David Barton in his historical revisionism and distortionism…er uh “research.”

Albatross,

Given that the Virginia Statute has this:

“That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical”

Don’t you just wonder how a guy like “Mr. Original Intent Scalia” gets around that little nugget?

Thanks for the tip on Dershowitz, now reserved at my local library.

I also dispute the notion that Scalia, unlike Clarence Thomas. respects precedent. Scalia is perfectly willing to blow away precedent when it serves his cultural agenda.

Erie v. Pap’s AM (2000)
http://caselaw.lp.findlaw.com/.....ol=98-1161

The case had already been effectively decided in the city’s favor on the basis of alleged secondary effects of strip clubs. “Secondary effects” have been the traditional basis to challenge such establishments.

But Scalia wasn’t content to go along with precedent. He, joined by Thomas, went a completely unnecessary extra mile to say that secondary effects — or lack of them — didn’t matter — the mere willy-nilly assertion that something was “immoral” was enough to overturn the ruling of the Pennsylvania Supreme Court, which had sided with the strip club.

Both legal and political tradition expected the demonstration of some adverse secondary effects to prevent or shut down these establishments.

But since it served his cultural agenda to go a mile further, he went that mile further and advocated the abandonment of tradition, blithely claiming that “morals” trumped free expression.

“the mere willy-nilly assertion that something was “immoral” was enough to overturn the ruling of the Pennsylvania Supreme Court, which had sided with the strip club.”

Lest I get nitpicked over, Scalia felt that Erie’s willy-nilly opinion, if it existed, that something was “immoral” was not only sufficient to trump the establishment’s freedom of expression, but worth overturning a state Supreme Court ruling over.

True judicial restraint would have let the PA Supreme Court ruling stand. But doing do would not have been congruent with his cultural agenda.

As far as Scalia’s respect for precedent goes, I was merely reflecting what I read in the First Amendment Center’s Clarence Thomas symposium. It was something of an aside, so the observation may have been just relative to Thomas.

http://www.firstamendmentcente....._symposium

I remember that. Scalia gets cut so much slack so many ways it’s a disgrace.

Still waiting for a response to the issue of whether Scalia should recuse himself from future C-S cases given his stated bias?

A similar question would involve the other devout catholics on the court (Thomas, Roberts, & Alito) should an abortion case come up. Since the Pope has said that if public officials support abortion, then they automatically excommunicate themselves, should recusal be expected here too?

Guess that since I’ve already been labeled a “liberal nutter,” I probably shouldn’t hold my breath while I wait for answers!

Jimbob: General comments normally do not create grounds for a recusal. It’s pretty clear what each Justice feels about certain issues from their opinions and dissents. Public statements, which ar eoften less detailed than these opinions, are no more a reason to recuse. Good reasons to recuse involve statements that are quite specific, such as the “Under God” case involving 1st Amendment rights and the pledge of alliance, to which Scalia recused himself after making statements relating to this specifically.

http://www.law.com/jsp/article.....6080440869

In other words, it’s clear that certain justices believe in substantive due process and others do not, from speeches to their opinions, but this is not a reason for them to recuse themselves in future SDP cases.

David:

States have been given 3 police powers since the English common law: public welfare, safety, and morality. THIS is the precedent that Scalia *IS* upholding.

Scalia is not going against any “precedent” in Erie, since the US Supreme Court is not subject to stare decisis for decisions of a state Supreme Court. Instead, Scalia is deferring to the legislature, although his opinion is absolutely meaningless since he only concurred in judgment. Deference to democratically elected officials vs. Deference to non-democratically elected judges. Hmmm.

Hooray! We now have a “morality” police!

You always have. Police powers don’t refer to cops, they’re specific but broad ranging powers delegated to the state. As opposed to Congress, which has only enumerated powers.

http://www.britannica.com/eb/a.....lice-power

RE: Deference to democratically elected officials…

I’m not familiar with this case or the issues, but when it comes to the protection of rights and liberties, sitting in judgment upon the “democratically elected officials”, not showing deference to them, is the whole point. Rights (of the sort we are referring to) are protections for the people, and especially minority populations, against the excesses of the legislature and the executive. Who, of course, are always acting on behalf of the majority and for the good of the whole. We have known since Aristotle that democracy tends toward tyranny, which is not only why we have a system of checks and balances, but also why we have judges who are NOT democratically elected. Doesn’t always help, however.

RE: Morality Police

If I’m not mistaken, the first amendment, incorporated into the 14th amendment, limits the police power of the state in the area of free expression. It is the responsibility of the SCOTUS, in specific cases, to oversee the protections provided to the citizens by the federal constitution.

As I said, I don’t know the specifics of this case, but it is definitly proper for the SCOTUS to question and overturn an overreaching state legislature or an overzelious executive.

At least the state court seems to be doing its job.

“Deference to democratically elected officials vs. Deference to non-democratically elected judges. Hmmm.”

Hmmm, ummm, yeap… Unelected judges whose JOB it is NOT to permit legislatures from doing things that are illegal under the Constitution of the United States or, if state lawmakers, their respective state constitutions.

(But that’s your whole beef, isn’t it? You don’t like having your favorite legislators bound by the Constitution, eh?

Read Federalist #78 some time.

BTW, if you have such an objection to “unelected judges,” then you should have no peeves about some of our calls for the removal of people like Scalia.

After all, exposing them to possible removal would certainly take away some of their “unelected” invincibility, wouldn’t it?

P.S> WHy do I get the feeling that Jake is all for the impeachment of judges who make decisions that he doesn’t like?

If I remember, it was the right wing who made a lot of noise about impeaching judges in recent times….

BTW, “morality” is unconstitutionally vague, hardly suitable for substantive due process. So there.

If a justice makes a decision I don’t like, I will never call for that justice’s impeachment. Try again.

I’m not for the impeachment of ANY judge who doesn’t commit high crimes or misdemeanors. No one has yet to state a *single* good reason for why Scalia — considered to the most influential justice of the 20th century, voted in 98-0 (and his judicial opinions as a judge on the Court of Appeals have hardly changed at all, he is not an O’Connor), and respected by even democratic senators as I’ve previously quoted — should be removed. Calling for the removal of a justice for political reasons is a tragic affront to our judicial system.

I’m for judges applying the law and not creating new law, which is the role for legislatures and constitutional conventions. But by all means, thank you for bringing up #78. It only BOLSTERS my point. Allowing UNELECTED officials to create law? That is exactly what Hamilton warns against in 78. The Supreme Court has arguably become the most powerful branch precisely because of the return to the Lochner era by LIBERAL justices, to which Scalia has no problem calling Lochnerites. Again, I’m glad you brought up 78, which coincidentally was included in Scalia’s packet for his constitutional law lecture he presented to students at UVA’s school of law.

Secondly, I’m not sure why you feel the need to label me the “right wing”. Being a conservative in legal jurisprudence has absolutely no bearing on my political beliefs. But I guess that’s the problem with liberals, they don’t know how to separate the judicial system from politics.

Finally, substantive due process is based on fundamental rights, which are examined by the Supreme Court starting with “deeply rooted traditions.” To say that conceptions of morality aren’t deeply rooted goes against every criminal law on the books.

Okay, I’m glad to hear that you’re not a hypocrite regarding the impeachment of judges. And I even must give you credit for addressing the substance of our arguments.

“Secondly, I’m not sure why you feel the need to label me the “right wing”.”

Fair enough, but the energy with which you seem to be devoting to defending “legislating morality” would lead one to initially assume that. I must wonder why.

“Calling for the removal of a justice for political reasons is a tragic affront to our judicial system.”

Like I said, it would be quite a Pandora’s box. I would hope we don’t have to go that route. But appoint one more judge like him, and the Constitution — as nearly all Americans have grown up to know it — would cease to function. People would begin wondering why their seemingly obvious fundamental and Constitutional rights were no longer being protected.

The advent of that situation would warrant drastic action. I pray it doesn’t come down to that, but I’d support it if the alternative were the near total end of my Constitutional protections for the remainder of my life.

“To say that conceptions of morality aren’t deeply rooted goes against every criminal law on the books.”

No, it doesn’t. You yourself distinguished between public safety, welfare, and morality above.

Public safety and welfare are legitimate state interests. Morality is not.

And yes, that is just my opinion.

Were I to play Devil’s advocate and look for the bright side of the cessation of our Constitutional taken-for-granteds, it would be that we freedom-lovers would have to do a much better job of explaining and defending freedom than we have to date.

We’ve become lazy, counting on the courts to do our jobs for us. Lose the protective role of the courts, and we’d actually have to argue our positions better.

That would be a bright side, for sure, but it’s a bright side not worth the risk.

Thank you for that very civil and well argued response.

I’m kind of getting tired of arguing, so I’ll just make a few rebuttals.

1. Check out Crawford v. Washington if you think Scalia wants to change the Constitution and block rights. It’s probably the most important criminal case to come out of the last decade. I have worked for a prosecutor, and believe me the effects have been stunning.

The Constitution of todays generation is not like the Constitution of yesterdays, precisely because of the type of interpretation that Scalia fears. What many don’t understand, is that this interpretation can for the next generation be used to harness rights. Scalia’s constitution is what it is. The “living constitution” doctrine assumes that it must be progressive, and this is simply not the case. Many dictator’s rises to power was under the guide of false-progressive reforms. The rights of Scalia’s constitution are static and don’t expand or collapse unless Congress sees fit to pass an amendment, the very reason why the Framers inserted an amendment process.

Best case in point: Women’s suffrage. There is CLEARLY an equal protection claim for women’s right to vote. But is that how our Government expanded their right? No. They passed a constitutional amendment.

I mentioned impeachment early on — and got lumped into the “liberal nutter” category as a result.

My problem with Scalia is not that he makes decisions I disagree with — it would be ludicrous to cry “impeach” for that.

Rather, my problem is malfeasance — for that is the word I’d assume applies when somebody swears an oath to uphold the constitution, and then makes it clear in his speeches that “We the people…” is secondary to “god’s law.”

I guess swearing an oath to the people isn’t very binding to a devoutly religious person?

Now it’s the RR — not “liberal nutters” who are doing all the braying about “activist judges.” Well, NOBODY has yet answered my comment about the issue of recusal by the four devout catholics from abortion cases.

The pope says support for abortion by a public official amounts to “self-excommunication.” So do Scalia et al disregard that — or do they follow the rule of a foreign potentate?

Their voting records and writings seem to make the answer pretty clear to me.

RE: I’m for judges applying the law and not creating new law, which is the role for legislatures and constitutional conventions.

Enforcement and expansion of rights is an encumbrance on the legislature and executive, not upon the people. Restrictions of this sort are limited changes to constitutional balance: the “living constitution” is NOT “judge made law”.

The concern that legislative and executive authority may be expanded by the SCOTUS is, of course, legitimate, but it is not any more of a concern that that they might be too restrictive of the other branches. What counts is the reasoning and consequence. In other words, those “Secondary effects” Dave mentioned.

For instance, in the “Bong Hits 4 Jesus” case the court (by my estimate) significantly expanded the executive’s reach in allowing regulation of speech by school administrators outside of school property. I don’t agree with the ruling, but my son (a high school student, no less) does. The court has significantly limited free speach rights when it finds good reason to do so, and in some cases I agree.

It cuts both ways; there is a danger both ways; but there are significant benefits for our life, liberty and pursuit of happiness. For instance - the manifest injustice of racial discrimination was ended by the SCOTUS without the bother of a second civil war. We were able to keep the death toll down to the hundreds, maybe the low thousands at the most.

And the ladies should have been given the same courtesy back in 1920.

On the topic of right vs. left and Catholic vs. Fundimentalist I read the following in a review of a book called The Age of American Unreason:

The other major energizer of anit-intellectualism has been the growth of fundamentalist denominations… Also, there is now a political alliance between fundamentalist Protestans and traditionalist Catholics based on a shared piety and hatred of secularism and the influence of secular values on our society. Evidence of this alliance is the Protestant Right’s overwhelming approval of devout Catholics John Roberts and Samuel Alito as U.S. Supreame Court Chief Justice and Justice of the Court respectively.”

I bet we could add Scalia to that list. The Religious Right is a bit broader than Protestant Fundamentalism.

“Evidence of this alliance is the Protestant Right’s overwhelming approval of devout Catholics John Roberts and Samuel Alito as U.S. Supreame Court Chief Justice and Justice of the Court respectively”

I can’t blame this on Scalia, of course, but there is ouotrage among civil libertarians that we’ve been “had” twice now, with Chief Justice Roberts and Alito. I left feeling like we’ve been deceived, just to win confirmation.

I listened to the confirmation hearings of both quite intently. I had hopes when Roberts was asked some tough questions by Arlen Specter, one of the few remaining Constitutionally conscientious Republicans on the Judiciary Committee. It was almost spooky how Roberts answered many of the questions exactly as I would have answered them.

Turn him loose on the Supreme Court, and he (and Alito) and Scalia seem to be in sync on nearly everything. Alito, well, just wasn’t talking. We should never have confirmed a guy who wouldn’t talk.

“I bet we could add Scalia to that list. The Religious Right is a bit broader than Protestant Fundamentalism.”

Alan, that’s a point a lot of people seem to miss. The RR is not limited to evangelical Protestants. (Nor should all evangelical Protestants be included in the phrase “religious right”.)

Thanks for the quote from that book. I’d been meaning to add it to my reading list.

It was just a typo … Scalia was actually awarded the Thomas Jefferson “Meddle” in Law and it’s well earned!