Sunday, April 27, 2008

Scalia on 60 Minutes: The Rock Star Speaks

It was a great interview. Nino starred. His sense of humor and his actual humility came through. I am not going to go around and look for ways that he is either a hypocrite or even wrong. I think for the first time since Justice Douglas, we have an erudite well spoken and well read judicial hero. He may not be universally liked, but he stated his case for originalism well. I only wish Stahl had asked questions about federalism's reach and what if any limits there may be.

Originalism is not a dead constitution, it is for letting the constitution stand for what it says and for laws to stand for what they stand for. It is the reason that the constitution gets amended when the country believes there is a reason for it. It is the reason that it requires so many votes to amend it.

I like the way Scalia spoke about how he would do away with all abortion or have thrown the flag burner in jail if it were up to him. How his belief in the constitution does not allow for personal opinions to take the sway.

I did think he parsed words a bit too much when it came to using the cruel and unusual punishment language in the discussion about torture. I agreed with Stahl that the 8th amendment to the constitution would not allow for the use of torture and torture is just as easily a punishment for one's beliefs or race etc. as it can be viewed as an instrument of interrogation. The point is that I think Scalia asks the correct questions, in that the first question he must ask himself is, does the issue present a question that implicates the constitution as the forefather's wrote it. Where he and I may disagree comes down to understanding what is taken in by the meanings. He is broader than I in some places, and I broader than he in others. I also may take a more narrow view of how expansive a law is. In interpreting law, I am one who believes in looking at the actual words of a law and not giving meanings to them that either restricts or expands them beyond the words the legislature uses. I would also say that I would have to look hard at legislative history in interpreting many laws. I think he uses too little of that in his writings.

I also wish Stahl had asked him how he uses Presidential (or executive) signing statements and what if any effect he thinks they should be viewed by a judge when interpreting statutes.

Getting back to his originalist views, I am glad to hear him explain that if a case (like Roe) is found to be outside the constitution by the court, then go back to the public or their leaders and ask them to change it. Make a new law, or amend the constitution, either way, it is a republic and the majority's interests must often be upheld. Yes that view may hurt me a lot on a lot of cases, Yes it is the way a judge and a citizen should look at the Constitution.
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