One Reason Why North Carolina Republicans' New Congressional Redistricting Map Should Be Dead On Arrival
First off, from the masterful pen of our muse, Yas, at The Rectification of Names:
Well, that was a fun Saturday! Marco Rubio won by coming in second instead of winning, as originally planned, by coming in third, and Hillary Clinton didn't lose by coming in first, even though Sanders won by coming in second, because her campaign had cleverly crafted the message that she'd win if she won, just as happened with Trump, who won because he was a winner, though he sometimes wins by coming in second too. Cruz lost, crushingly, with a vote that is statistically indistinguishable from that of the winner Rubio, whereas JEB! was forced to quit with his terrible 7.8%, conceding to the better prepared and more electable Kasich, who won spectacularly with 7.6%.
JEB! won the contest of who really wants to spend more time with his family, though it is not clear whether he means his wife and children in Florida or his brother in Texas and his mom in Maine. And these people all like to make fun of us ordinary folk with our Little Leagues and chess clubs where everybody gets a trophy.
. . . In 1964, 16 states had Republican primary or caucus contests, in contrast to 50-odd states and territories today, and Barry Goldwater won five of them (Illinois, Texas, Indiana, Nebraska, California). The states he won included some of the biggest, California's two million votes making up a third of the total, but he went to the convention with 38.33% of the vote—49% of the delegates, because of his people's work in the good old smoke-filled rooms in the other 34 states. He'd have been well behind that point, too, if the second Mrs. Rockefeller had not had a baby three days before the California primary, reminding the voters of that deeply moral state that Governor Rockefeller was a known adulterer and causing a large number of them to change their minds at the last minute (winning Goldwater just under 52% of the vote but all of the state's delegates).
It was a different time! Now a known adulterer comes in 20 points ahead of his nearest and smarmiest, most creepily Jesusy rivals in deeply moral South Carolina, people! Where people identify as 74% evangelical.
. . . When pandits say Marco Rubio is electable, I think they mostly mean he's a revolting little prig but nice-looking, and with a manner less directly offensive than Cruz's: "I don't like him but I bet everybody else does" the way Mrs. Cleaver thinks Eddie Haskell is really a nice boy. In fact they are merely making the mistake of thinking other people are even stupider than they are, which is not necessarily the case. It's a pretty conservative way of looking at things, though.
Read the entire essay if you have time, it's got some great political insights.
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Agatha Christie would have been sneaking up a ladder into the second story of that ritzy hotel if she'd heard any rumor about the events to come. Pardon my levity.
An obese 79-year-old man in a sedentary occupation goes to bed early because, he says, he is not feeling well. The next morning, he does not show up for breakfast and, after giving him a reasonable amount of time, the proprietor of the luxury resort enters and finds his guest deceased.
Too bad Agatha Christie was not a fellow guest, because there has to be foul play. The deceased was Antonin Scalia, Associate Justice of the U.S. Supreme Court, darling of the political right and probably the best writer among the nine justices in terms of reaching non-lawyers.
This death occurs in Alpine, Texas, rural Texas, far rural Texas, near Big Bend National Park. This would be Occupied Texas, after the federal government took over in Operation Jade Helm 15. Most rural Texas counties have no medical examiner. If an autopsy is needed, it is done under contract by either some other country’s medical examiner or a private doctor.
. . . Alpine is located in Brewster County, and the report of Justice Scalia’s death required a call to one of the three justices of the peace. None of them could be reached. The next call went to Cinderela Guevara, County Judge of neighboring Presidio County, about 85 miles away.
In an interview with Dallas station WFAA, Judge Guevara described how she teased out the story a few words at a time because the cell phone connection kept dropping off. Cell signals, as well as radio and TV signals, are scarce in far West Texas. As luck would have it, she was in Alpine, only about 30 miles from the Cibolo Creek Ranch, where Justice Scalia had come to hunt.
The first part of unraveling the truth will be finding out why the Brewster County justices of the peace could not be reached. Then, perhaps, some patriots could waterboard Judge Guevara and find out who paid her not to make the drive to see Justice Scalia’s body.
The judge’s cover story was that she spoke to the U.S. Marshal and the Sheriff on the scene who told her there were no signs of foul play. Then she had a conversation with Justice Scalia’s personal physician, who informed her that he was in fragile health.
So it was that an Associate Justice of the U.S. Supreme Court was pronounced dead of natural causes by a person with no medical training who never saw his body. Other clues continued to surface.
♦ The U.S. Marshal is responsible for Scalia’s security, but Scalia allegedly declined protection on this hunting trip.
♦ John B. Poindexter, owner of a business with about a billion dollars of annual revenue and Scalia’s host at the resort, announced that Scalia was found “with a pillow over his head,” raising suspicion that President Obama had smothered Scalia or hired it done. Poindexter later clarified to CNN, “He had a pillow over his head, not over his face as some have been saying… The pillow was against the headboard and over his head when he was discovered.” But the truth was already out.
♦ "World Net Daily," the unimpeachable news source that did so much to break the story about Operation Jade Helm 15 preparing for a federal coup against Texas based in Wal-Mart stores, discovered that co-conspirator Poindexter has in the past made campaign contributions to Democrats.
♦ "Liberty News Now" reported that Hillary Clinton had Scalia killed so she could appoint Barack Obama to replace him and cited the air tight evidence of Clinton’s reply when asked what she thought of putting Obama on the SCOTUS, “What a great idea.”
♦ Speaking of propaganda, another patriot rang the tocsin on his radio show, The Savage Nation. Michael Savage said, “We need a Warren Commission-like federal investigation.”
Everybody knows the first Warren Commission pulled the plug on all those conspiracy theories, right?
Later, Savage informed his guest, Donald Trump, “Donald, you know that just five, six days before Scalia was found dead with a pillow over his face, he was the lead voice against Obama’s attempts to railroad that green gangsterism down our throats, he knocked it out? He was the one who did it.”
Propagandists for the establishment were quick to point out that Scalia was part of the 7-2 majority that affirmed the EPA’s duty to regulate CO2 emissions in the first place, but Savage did not let such details deter him.
♦ Patriot Glenn Beck called in to his own show and assumed the voice of God to inform his co-host Pat Gray, “I just woke the American people up. I took them out of the game show moment and woke enough of them up to say, ‘Look how close your liberty is to being lost.’ The Constitution is hanging by a thread. That thread has just been cut. And the only way that we survive now is if we have a true constitutionalist (as president).” Patriot Beck is supporting Rafael “Ted” Cruz.
Cornel West seems to think it's more necessary to understand the difference in what each candidate brings to the fight and what the ultimate result will be.
he future of American democracy depends on our response to the legacy of Martin Luther King, Jr. And that legacy is not just about defending civil rights; it’s also about fighting to fix our rigged economy, which yields grotesque wealth inequality; our narcissistic culture, which unleashes obscene greed; our market-driven media, which thrives on xenophobic entertainment; and our militaristic prowess, which promotes hawkish policies around the world. The fundamental aim of black voters — and any voters with a deep moral concern for our public interest and common good — should be to put a smile on Martin’s face from the grave.
The conventional wisdom holds that, in the Democratic primary, Hillary Clinton is the candidate who will win over African-American voters — that her rival, Bernie Sanders, performed well in Iowa and won New Hampshire on account of those states’ disproportionate whiteness, and that Clinton’s odds are better in the upcoming contests in South Carolina and Nevada, two highly diverse states.
But in fact, when it comes to advancing Dr. King’s legacy, a vote for Clinton not only falls far short of the mark; it prevents us from giving new life to King’s legacy. Instead, it is Sanders who has championed that legacy in word and in deed for 50 years. This election is not a mere campaign; it is a crusade to resurrect democracy — King-style — in our time. In 2016, Sanders is the one leading that crusade.
Clinton has touted the fact that, in 1962, she met King after seeing him speak, an experience she says allowed her to appreciate King’s “moral clarity.” Yet two years later, as a high schooler, Clinton campaigned vigorously for Barry Goldwater — a figure King called “morally indefensible” owing to his staunch opposition to the Civil Rights Act of 1964. And she attended the Republican convention in 1968! Meanwhile, at this same moment in history, Sanders was getting arrested for protesting segregation in Chicago and marching in Washington with none other than King itself. That’s real moral clarity.
Needless to say, some moral clarity set in as Clinton’s politics moved to the left in her college years. After graduating from law school, she joined the Children's Defense Fund as a staff attorney, working under the great King disciple, Marian Wright Edelman, with whom she struck up a friendship.
Yet that relationship soured. This came after Hillary Clinton — in defending her husband’s punitive crime bill and its drastic escalation of the mass incarceration of poor people, especially black and brown people — referred callously to gang-related youth as “superpredators.” And it was Bill Clinton who signed a welfare reform bill that all but eliminated the safety net for poor women and children — a Machiavellian attempt to promote right-wing policies in order to “neutralize” the Republican Party. In protest, Peter Edelman, Marian’s courageous husband, resigned from his assistant secretary post at the Department of Health and Human Services.
The Clintons’ neoliberal economic policies—principally, the repeal of the Glass-Steagall banking legislation, apparently under the influence of Wall Street’s money — have also hurt King’s cause. The Clinton Machine — celebrated by the centrist wing of the Democratic Party, white and black — did produce economic growth. But it came at the expense of poor people (more hopeless and prison-bound) and working people (also decimated by the Clinton-sponsored North American Free Trade Agreement).
Bill apologized for the effects of his crime bill, after devastating thousands of black and poor lives. Will Hillary apologize for supporting the same measures?
It’s no accident that Goldman Sachs paid Hillary Clinton $675,000 for a mere three speeches in 2013, or that the firm has given hundreds of thousands of dollars to her campaigns or that, in total, it has paid her and her husband more than $150 million in speaking fees since 2001. This is the same Goldman Sachs that engaged in predatory lending of sub-prime mortgages that collapsed in 2008, disproportionately hurting black Americans.
These ties are far from being “old news” or an “artful smear,” as Hillary Clinton recently put it. Rather, they perfectly underscore how it is Sanders, not Clinton, who is building on King’s legacy. Sanders’ specific policies — in support of a $15 minimum wage, a massive federal jobs program with a living wage, free tuition for public college and universities, and Medicare for all — would undeniably lessen black social misery. In addition, he has specifically made the promise, at a Black Lives Matter meeting in Chicago, to significantly shrink mass incarceration and to prioritize fixing the broken criminal justice system, including eliminating all for-profit prisons.
Clinton has made similar promises. But how can we take them seriously when the Ready for Hillary PAC received more than $133,000 from lobbying firms that do work for the GEO Group and Corrections Corporation of America — two major private prison groups whose aim is to expand mass incarceration for profit? It was only after this fact was reported that Clinton pledged to stop accepting campaign donations from such groups. Similarly, without Sanders in the race to challenge her, there’s no question Clinton would otherwise be relatively silent about Wall Street.
The battle now raging in Black America over the Clinton-Sanders election is principally a battle between a declining neoliberal black political and chattering class still on the decaying Clinton bandwagon (and gravy train!) and an emerging populism among black poor, working and middle class people fed up with the Clinton establishment in the Democratic Party.
It is easy to use one’s gender identity, as Clinton has, or racial identity, as the Congressional Black Caucus recently did in endorsing her, to hide one’s allegiance to the multi-cultural and multi-gendered Establishment. But a vote for Clinton forecloses the new day for all of us and keeps us captive to the trap of wealth inequality, greed (“everybody else is doing it”), corporate media propaganda and militarism abroad — all of which are detrimental to black America.
In the age of Barack Obama, this battle remained latent, with dissenting voices vilified. As a black president, Obama has tended to talk progressive but walk neoliberal in the face of outrageous right-wing opposition. Black child poverty has increased since 2008, with more than 45 percent of black children under age 6 living in poverty today. Sanders talks and walks populist, and he is committed to targeting child poverty. As president, he would be a more progressive than not just Clinton but also Obama—and that means better for black America.
Now, with Obama’s departure from the White House, we shall see clearly where black America stands in relation to King’s legacy. Will voters put a smile on Martin’s face?
It didn't go anywhere.
It's still there.
The question of whether to vote for the lesser evil in the upcoming presidential election is being resolved even as we wrestle with it. The last few years of global capitalist change and the response thereto in Greece show the historic moment now breaking out of such dead ends.
Greece, like the United States, was long dominated by two old parties. As they divided governmental power between themselves, they became ever more alike. One, the Panhellenic Socialist Movement (PASOK), “moderated” over time and eventually even embraced the vicious austerity imposed on Greece by Europe’s conservatives.
The other, New Democracy, represented Greece’s corporate and wealthiest elites allied with whatever conservative cultural and regional allies they could find. As with the Democrats and Republicans in the United States and parallel dualisms elsewhere, a changing global capitalism is dissolving this old style of politics.
In 2004, a coalition of the left, disgusted with PASOK’s “moderation,” formed the new Syriza party. It got the 2–4 percent of the Greek vote expected to be its limit by the complacent old Greek political establishment. Meanwhile, capitalism went on relocating from its old centers (Western Europe, North America, and Japan) to its newer and more profitable factories, offices, and stores in China, India, Brazil, etc.
The lure of much lower wages for workers who could easily be supervised and controlled from great distances thanks to telecommunications proved irresistible. Workers’ standards of living in the old centers atrophied while in the new developing zones, the regional partners engaged in relocating capitalist production became very wealthy in a sea of still-poor masses.
Capitalism’s global relocation thus deepened wealth and income inequalities in all countries, strained existing economic and political alignments, provoked excessive debt manipulation everywhere, and eventually crashed global capitalism in 2008.
Does Hillary's over-the-top loud claiming of close wins and virtual ties help or hurt her?
Does her ownership of the vast majority of the Democratic super-delegates hurt her with the millennials?
Remember that those young Bernie-supporting voters are, historically demonstrable by age cohort, non-voters when they are disillusioned or just uninspired.
That makes these key questions for the summer and fall. As for assessing the immediate impacts? Here’s one to factor in since Saturday night in Nevada: Clinton seized upon her barely-eeked-it-out win in Nevada like, well, DeGaulle rolling-in to liberate Paris.
She did that to avoid the “almost a tie” narrative of Iowa — not because this one balances Bernie’s decisive New Hampshire numbers, because it doesn’t.
She has yet to score a lopsided win that compares to Bernie’s. But that didn’t humble her “Triumph in Nevada” speech. It doesn’t take a boxing fan to know that you don’t brag about your split decision as your “triumph.”
Perhaps she was concerned it wouldn’t have been used had it been kept in waiting for an appropriate occasion.
That, and she sought to fuel the “Clinton expectations game.” In terms of the media, it appears she did. Her speech was ratified with proclamations of “a degree of momentum and inevitability” as a common theme on the Sunday shows. But will it pass the smell test with young voters after just two squeakers and one thrashing loss?
A companion theme credited Clinton for that grandiose Nevada victory speech, citing it for “changing the narrative” away from her incessant “I, I, I,” and away from “the Hillary story narrative,” to “a sudden ‘we.'” To hear the sabbath gasbags, it seems her “we need to go forward together” was Alexander after flattening the opposing army, sweeping the steppes. Not Henry V before “We few, we happy few” face tough odds battling on St. Crispin’s Day.
Her Nevada victory, despite its dubious premise, clearly seduced the media. Another reason: it was couched in a vintage Bill-Clintonesque “here’s-what’s-in-it-for-you-if-we’re-together!” message.
As for seducing those who worked hard for Bernie in Nevada, or into the field for jousts ahead? Her tone took a gamble. And one easily seen as hubris. One that harkens to that annoyed demeanor, that entitled-to-it thing that she has, that you always knew could be scratched to the surface from beneath a very thin veneer.
The big question is how young voters see it. Not just because they can be the margin of difference in individual primaries and perhaps the general election — but whether their experience taking part in 2016 determines whether they will want to participate for years to come. It is very much at stake.
Idealistic young Bernie voters are, in phenomenal numbers, devoted to their candidate’s credibe outrage, determination to end hard-wired piracy, all the way to his harried professor’s hair and authentically unintentional grandfatherliness.
Every bit as important as the numbers that will determine who will win the nomination, the general election is based on myriad intangibles that emphasize image over substance, that often come down to how a candidate makes you feel. (In that, the woefully inexperienced Donald Trump is not a singular phenomenon.)
Clinton’s Nevada victory speech affords opportunity to assess a crucial intangible while there’s still time to determine who will be able to amass the bigger numbers to become president.
How will these young devotees to Bernie respond to seeing things portrayed with Nevada’s outcomes, and the characterizations applied there, when they have their own knowledge, assessments and expections developed from the just-completed contest in which they worked? Will Hillary’s victory speech trend on their phones on YouTube? Will they feel an instant embrace or a disgusted alienation following her second narrow win and the change in posture she has chosen to characterize it?
Is some numerically unquantifiable, but no less important level, whether she is acceptable as the right kind of Bernieesque oldster, a universal grandmother figure, wise, comforting, someone you want around? Or will all her constantly searching to define herself for them, and for all of us, never allow her to lose the awkward authenticity problem that keeps them from wanting to get close?
Did you feel a bit funny after he died when you saw all the coverage of the subtlety of Scalia's low-life judicial (and otherwise) behavior?
The conservative "Daily Wire" website posted a headline that read: “Liberals Disgustingly Tweet Glee at Justice Scalia’s Death.”
Are these gleeful reactions to Justice Scalia’s death morally defensible? Are those reacting this way failing to treat the man with the level of dignity he deserves?
As I thought about these questions, my mind drifted – as it often does – to the ideas of the great abolitionist Frederick Douglass, who I have spent the last decade or so studying. More specifically, I thought about an editorial Douglass published in October 1870 called “Death of a Perjured Traitor.”
The occasion for the editorial was the death of Robert E. Lee, who was “one of the chief rebel generals” in the Civil War. Many political and cultural elites reacted to Lee’s death, Douglass wrote, with “ostentatious and noisy exhibitions of sympathy and grief.” Some of these elites praised Lee’s “great public virtues” and others said whatever one thought of Lee politically, he ought to be remembered for his “rare private virtues.”
Douglass, as you may have guessed from the title of his piece, was having none of this. When someone of Lee’s public stature dies, what matters is not how he performed in the world as a husband, father, brother, or friend.
What matters, Douglass wrote, is what Lee stood for as a public man. Considered in this light, Douglass had “no sympathy to waste” and “not a regret to express over the death of this arch apostate.” Lee’s words and deeds during and after the Civil War revealed that his primary devotion was to undermining the dignity of African Americans and he had therefore earned the disrespect of those who care about “liberty, justice, and humanity.”
Antonin Scalia was the Robert E. Lee of the American culture war. He devoted the words and deeds of his public life to championing a set of ideas that placed him firmly on the conservative side of the many battles of that war. Like Lee, Scalia often found himself on the losing side and, like Lee, he “never ceased to mourn over the lost cause.”
Although Scalia’s views of abortion and affirmative action did much to establish his reputation as a conservative culture warrior, it was his resistance to gay rights that proved to be his defining battle. In the 1996 case of Romer v. Evans, the Supreme Court considered the constitutionality of a Colorado law that permitted local jurisdictions to allow discrimination on the basis of sexual orientation. The majority of the Court found this law to be inconsistent with the Constitution’s promise of “equal protection of the laws,” but Scalia offered a blistering dissent. “Of course,” Scalia wrote, “it is our moral heritage that one should not hate any human being or class of human beings.” But Coloradans weren’t guilty of hating a class of human beings, he proclaimed, they were simply expressing animus toward “homosexual conduct,” which like “murder,…polygamy, or cruelty to animals” has been the subject of “centuries old criminal laws.”
In the 2003 case of Lawrence v. Texas, the Court considered the constitutionality of a prohibition on “homosexual sodomy.” While the majority of the Court found the law to be inconsistent with the protection of liberty provided by the Fourteenth Amendment of the Constitution, Scalia once again found himself in dissent. The Court, he declared, was signing on to the “homosexual agenda” by depriving the people of the states the opportunity to express their “moral opprobrium” of homosexuality, which they believe to be on par with “fornication, bigamy, adultery, adult incest, bestiality and obscenity.” If the people of a state want to lock adults up for engaging in consensual sexual conduct, Scalia said, there was nothing in the Constitution stopping them from doing so.
At the conclusion of his Lawrence dissent, Scalia expressed worry that legal prohibitions of same-sex marriage would soon find their way to the Court and the cases of U.S. v. Windsor and Obergefell v. Hodges proved him right. In Windsor, which dealt with the constitutionality of the federal Defense of Marriage Act, Scalia dismissed the idea that the exclusion of same-sex couples from the protection and recognition of marriage demeaned or humiliated anyone. The majority was simply asserting its legitimate power to “enforce traditional moral and sexual norms” by limiting marriage to one man and one woman.
In Obergefell, the Court struck down state prohibitions on same-sex marriage and, again, Scalia dissented. The majority decision was little more than a “judicial putsch” – a “naked” assertion of power in defiance of “the freedom of the people to govern themselves.”
In the realm of gay rights, Justice Scalia committed himself – time and again – to staking out positions that denied the equal dignity of all human beings. And it was this record, more so than any other aspect of the voluminous writings and decisions he leaves in his wake, that have inspired some to react to his death with irreverence and even hostility. When these decisions came up during public discussions or interviews, Scalia seemed to take a good deal of pride in his position as a curmudgeonly dissenter who was acting in accordance with his understanding of judicial duty.
Robert E. Lee and Antonin Scalia staked their legacies on conceptions of duty that put them at odds with movements that sought to move this country closer to the recognition of the equal dignity of all human beings. It is upon these views of duty that they, as public men, ought to be judged. They deserve nothing more and nothing less.
22 February 16
or almost 30 years, Justice Antonin ‘Nino’ Scalia was a larger-than-life presence on the bench – a brilliant legal mind with an energetic style, incisive wit, and colorful opinions,” declared President Barack Obama. “Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law.”
High praise indeed – and completely bogus, especially from a commander-in-chief who acts as judge, jury, and (by proxy) executioner for drone targets around the world, and a POTUS who refused to bring criminal indictments against the Wall Street bankers who created the global economic crash in 2008.
Rule of law? Would you like me to sell you a nice bridge in Brooklyn?
In significant sections of our political economy, the rule of law operates as it should, allowing people to know what the rules are and to see them fairly enforced. But, like the myth of free markets, paeans to the rule of law – sincere, self-serving, or ceremonial – too often mask the naked exercise of power. They also trash the once-sacrosanct ideal that no one – rich or poor, black or white, government official or private citizen – stands above the law.
Even before Ronald Reagan named him a federal judge and then Supreme Court justice, Antonin Scalia added dramatically to this legal hocus pocus when, in 1982, conservative and libertarian law students at Harvard, Yale, and the University of Chicago created the Federalist Society. Scalia served as one of the faculty advisors, along with his friend and long-time colleague Robert Bork.
The right-wing activists opposed liberal judicial approaches that had enlarged the federal government, reduced states' rights, and created “privacy rights” that the Constitution had never explicitly sanctioned.
They hated legalized abortion and federal intervention to protect African-Americans, and they favored “traditional values,” unfettered campaign contributions, and an unrestrained right to bear arms.
Presenting themselves as “strict constructionists” defending the true meaning of the Constitution, the Federalists framed their fight as a response to “judicial activism.” They insisted that the judiciary “say what the law is, not what it should be.”
Increasingly persuasive as American voters swung to the right, these arguments helped the Federalists become the country’s single most influential group of legal intellectuals. They essentially follow two overlapping schools of thought – or claim to. On the Constitution and its amendments, they base their decisions, they say, on the original intent of the framers and subsequent authors.
The appeal is obvious. The Federalists appear to offer an objective way to make Constitutional decisions, which they contrast to the unavoidably subjective judgments of liberal judges and justices seeking to adapt what they call “a living Constitution” to situations that James Madison and John Adams could never have conceived of.
“It’s not a living document,” Scalia insisted. “It’s dead, dead, dead.”
Well, not quite. Take a look at Scalia’s classic 2011 interview in the California Lawyer. “In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” said the interviewer. “So does that mean that we've gone off in error by applying the 14th Amendment to both?”
“Yes, yes. Sorry, to tell you that,” replied the effervescent Scalia. “Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.
You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. 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. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Scalia appeared to be offering a principled and unfailingly democratic defense of Originalism. How then could he have joined in the majority decision in Bush v. Gore, which cited the 14th Amendment’s Equal Protection Clause to override the voters of Florida and make George W. Bush president?
In 2011, journalist Robert Parry pointedly answered the question. He called Scalia a hypocrite. It’s difficult to disagree. But “Originalism” has hypocrisy built-in. Too often, neither historians nor lawyers know what all the different authors of any particular passage intended or how to weigh their differences. It’s largely guesswork and often – though not always – depends on the results a particular judge or justice wants.
“Judges are not competent historians,” explains circuit court judge Richard A. Posner, a Reagan appointee and one of the country’s leading legal authorities. “To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”
Others may suggest a more straightforward view of how Scalia interpreted the ineptly drafted Second Amendment: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Did the framers intend the militia clause to restrict the right to keep and bear arms? Or did they want to preserve militias, now the National Guard, and also preserve the ancient English right for individuals to keep and bear arms? One can in all honesty read the text either way, and competent historians have no agreed-upon answer.
Scalia made his subjective preference clear in writing the majority decision in District of Columbia v. Heller, declaring that the Second Amendment guaranteed an individual’s right to possess a firearm for self-defense or any other legal purpose. Liberal law professors, like Laurence Tribe and Sanford Levinson, had reluctantly come to the same conclusion, while two conservative federal judges – Posner and J. Harvie Wilkinson – condemned Scalia’s decision as activist and highly political. This was precisely how he and they saw the liberal creation of privacy rights and legalization of abortion in Roe v. Wade. Leave both gun and abortion rights to the political process, Wilkinson and Posner argued.
A third case makes chopped liver of Scalia’s claim to “say what the law is, not what it should be.” In Citizens United, Scalia joined in the majority decision that the First Amendment guaranteed individuals and corporations the right to unlimited election spending.
University of Colorado law professor Paul Campos found this most instructive. “The men who drafted and ratified the First Amendment would have, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons,” wrote Campos. “It would be hard to come up with a purer example of treating the Constitution as a ‘living document,’ the meaning of which changes as social circumstances change.”
Campos called Scalia “an intellectual phony.” That, too, would be hard to disagree with. I would only add that among the first to give prominence to the idea that money is speech were those activist liberals at the American Civil Liberties Union (ACLU). Was their reasoning any more objective than Scalia’s? Was it any closer to the rule of law?
Contrary to much that’s been written, Scalia called himself “a faint-hearted Originalist.” Over time he leaned more to “textualism,” which focused narrowly on what specific laws and contracts say – and emphatically not on trying to figure out what the authors intended. This was an even more objective way to make judicial decisions, he insisted. But he was equally ideological about that. His textualism “tilts toward ‘small government’ and away from ‘big government,’ which in modern America is a conservative preference,” wrote Richard Posner in his trenchant critique of Scalia’s “incoherence.”
But Posner goes beyond pillorying Scalia. He tells a needed truth about how his colleagues play the judicial game, liberals as well as conservatives. “Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them,” he explained. “They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.”
Posner does not buy the pretense, not from Scalia or from any other judge or justice, left, right, or center. Neither should anyone else.
“Judges,” he wrote, “tend to deny the creative – the legislative – dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis.”
Rule of law? No, the rule of lawyers, with undeniable ideological, political, and experiential bias. This honest understanding should govern how the country chooses Scalia’s replacement and all the judges and justices to follow.
I've had more than a few law courses and I've never had a prof/lawyer who taught them who believed that the right to a well-regulated militia was separate and apart from the individual right to bear arms in the 2nd Amendment's interpretation.
I always thought this belief got its first real impetus from the Pat Robertson/Jerry Falwell Liberty University law school, which was founded in the 70's/80's, crowd (as well as the later clones like Regent University and Patrick Henry College) who learned their law from bible-pushing religious wingnuts.