Antonin Scalia on economic rights

by on February 13, 2016 at 5:53 pm in Current Affairs, Economics, Law, Philosophy, Political Science, Uncategorized | Permalink

From 1985 (pdf):

But still, that seemed to me a peculiar way to put it — contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something that has nothing to do with human beings, with their welfare aspirations, or freedoms.  That, of course, is a pernicious notion, though it represents a turn of mind that characterizes much American political thought.  It leads to the conclusion that economic rights and liberties and qualitatively distinct from, and fundamentally inferior to, other noble human values called civil rights, about which we should be more generous….On closer analysis, however, it seems to me that the difference between economic freedoms and what are generally called civil rights turns out to be a difference of degree rather than of kind.

He worries, however, that conservatives want a non-activist Court, but then want the Court to do what they want on economic issues.  Ultimately Scalia worried that if the Court gave too much credence to economic rights, it would end up with economic rights which are not sensible, and thus he wished to abide by a literally more conservative approach.  He closed his beautiful essay with this:

…the task of creating what I might call a constitutional ethos of economic liberty is no easy one.  But it is the first task.

I disagreed with him on many issues, but his presence on the Court was an important stepping stone for law and economics, and for philosophy as well I might add.

Addendum: “…justices die far more often when a member of the opposite party holds the White House.”

1 So Much For Subtlety February 13, 2016 at 6:03 pm

“…justices die far more often when a member of the opposite party holds the White House.”

And people thought The Pelican Brief was just a bad book! Who thinks Hilary is clearing the way for a vote recount challenge in Florida?

The passing of a giant. We shall not see his like again. A shame.

2 John February 13, 2016 at 8:40 pm

The big winners are public sector unions who just got a big reprieve. If you suspect foul play that’s where you should look first.

3 GOD ✓ᵛᵉʳᶦᶠᶦᵉᵈ February 13, 2016 at 6:05 pm

although the conservatives SCOTUS had a 5 to 4 advantage (actually 3, minus kagan,who was recused), or a 4 to 3 advantage, these conservative judges were never going to use Fisher v UT to overturn affirmative action. …they would find some excuse or other….and now they really have an excuse to not overturn aff action–the scalia excuse….the elites everywhere have always been in favor of affirmative action…

scalia’s opposition to affirmatve action was almost certainly only present because he could afford to pretend to be against aff action…if there had been four judges on the bench that really were against affirmative action, scalia would have rotated to be for it. See the “villain rotation” scheme of DC as detailed by Greenwald.

when will white americans ever feel the knife in their backs? Which knife? The one that conservative elites put there….

who wants to bet that the conservative senate will allow obama to confirm another judge before he leaves?
I bet they do.

4 cowboydroid February 13, 2016 at 6:26 pm

In what industry do you work? I’d like to start a business and hire only the black professionals so I can earn 25% more than your company and put you out of business.

5 Chip February 13, 2016 at 7:06 pm

For progressives the free market right is both racist and greedy.

In Nathan’s example, more racist than greedy. But this can flip when the virtue signalling requires it.

6 So Much For Subtlety February 13, 2016 at 6:29 pm

No one earns more than anyone else, much less 25% more, with the same qualifications for the same work. It is a myth.

Affirmative action is based on the interesting but unproven idea that racism is holding minorities back. There is no evidence of it and it does not work to create or sustain a minority middle class. Indeed it may be hurting the chances of a lot of Black people. But that is beside the point as it is a substitute religion for a lot of people and so evidence is irrelevant.

It is a shame that Scalia was not tougher on Affirmative Action. A small criticism.

7 Art Deco February 13, 2016 at 7:26 pm

I think there is econometric literature that show some effect on wage rates. I no longer have access to EconLit though, so cannot produce you a bibliography. The question would be whether the effect is contextually all that important, whether racial preference schemes are a remedy of any kind, and whether the costs could ever justify the benefits. (What seems to happen as a consequence of employment discrimination law is that written examinations for recruitment and promotion are abolished or gutted and a mess of marginally capable bourgeois are stuffed into positions in economic sectors like the legal profession and the teaching profession which are the most susceptible to this mess).

8 Stuart February 13, 2016 at 8:26 pm

Regarding the GOP Senate confirming or blocking SCOTUS – what would their argument be against Sri Srinivasan who they confirmed 97-0 to the DC Circuit Court in 2013?

For context, John Roberts only had two years of service on that circuit court before being nominated SCOTUS.

9 Nathan W February 14, 2016 at 5:35 pm

Do you think blocking an only moderate liberal judge will help them win any election anywhere? Including the one that they would have to win before hypothetically being able to appoint the replacement?

It’s kind of like playing chicken in a sense. Unpredictable.

10 So Much For Subtlety February 13, 2016 at 6:19 pm

And now we shall see the Republicans collapse in the House once more.

They may have a chance at gaining the White House but does anyone really think they will not allow Obama to appoint some pro-abortion extremist before he goes?

11 Art Deco February 13, 2016 at 7:02 pm

No, they’ll collapse in the Senate. The House has no role here. Messrs. Grassley, Hatch, Burr, and McConnell will fold like cheap tents.

12 mulp February 13, 2016 at 9:19 pm

Are you arguing for the court be limited to 8 justices for five years or more?

Refusing to ratify a nomination for 8 months is unlikely to setup a coordinated campaign to change the Senate enough either way, so the Senate can’t possibly be changed to allow a party line ratification by Feb 2017 when the war begins after 10 months of Republicans blocking any nomination.

But 8 months blocking a nomination will setup the presidential election for a serious war over who is a letter purely based on court nominations. My bet is Democrats win that war because Obama will nominate a centrist/moderate who will hard to paint as a left wing radical for the “independents” who hate the partisan politics and thus swear off party politics ensuring the parties never represent them. (You can influence an organization by not being part of it.)

Your best hope would be Bernie wins and nominates radical leftists which would lead to a conservative white house and huge Republican majority Senate in 2021.

McConnell has already started the war talk.

The next year will be interesting for political junkies, but probably make two-thirds of We the People angry, disgusted, or both, and increase the number of “independents”.

13 Stuart February 13, 2016 at 9:31 pm

Regarding the GOP Senate confirming or blocking SCOTUS – what would their argument be against Sri Srinivasan who they confirmed 97-0 to the DC Circuit Court in 2013?
For context, John Roberts only had two years of service on that circuit court before being nominated SCOTUS.

14 msgkings February 13, 2016 at 9:34 pm

They don’t really need an argument. They stick it to Obama for no other reason than sheer ODS. The Dems did it too to Bush. A pox on both partisan houses.

15 Nathan W February 14, 2016 at 5:45 pm

Would it a priori be desirable for a judge to have served longer years? Anyone who becomes a judge already has a pretty long list of accomplishments, don’t they?

A rookie judge? No such thing. Judges are experienced when they get to the job.

I mean, one might point out the obvious fact that there can be a preference for naming younger judges and that so doing is suspicious for the reason of introducing an element propitious to non-impartiality on the Supreme Court. But isn’t that already a priori expected to the nth degree by almost all partisans on both sides?

The number of years as judge prior to appointment should not itself be a big deal, in my opinion.

The only reason I can think of to generally prefer an older, more experienced judge, is that you could more reliably assess their “doctrinal purity” or some such thing in looking at their rulings. In which case, I would suggest that we should be more critical of the most experienced appointments, who are more obviously predictable in their ideological leanings, as proven by a long career prior to be named to the Court.

16 msgkings February 13, 2016 at 9:23 pm

Do y’all think it’s a good idea for the Senate to block SCOTUS appointments? Like, ALL of them? Before Obama even names someone you guys are already sad they might get confirmed, shouldn’t you wait to see who they are? Do you want the Senate to mess with President Trump when he tries to replace Ginsburg?

17 Tom February 15, 2016 at 9:16 am

Gosh, we can’t have such appointments getting borked now, can we?

18 Mark Thorson February 13, 2016 at 6:19 pm

With the Republicans holding both houses, does that mean they can stall his replacement until after the next election?

19 AlanW February 13, 2016 at 6:28 pm

Literally 95% of the comments on National Review are calling for just that (the rest are content to mourn his passing). How that squares with any pretense at an originalist interpretation of the Constitution, I’m at a loss to say.

20 Sam Haysom February 13, 2016 at 6:34 pm

They’ve decided not to consent to any of his nominees. Seems pretty constitutional to me.

21 Hoosier February 13, 2016 at 6:40 pm

Can’t the dems reply that they’ll filibuster any republican nomination as a consequence? Even if it took 4 years? If McConnell tries to go nuclear on this it seems only fair.

22 Art Deco February 13, 2016 at 7:21 pm

They can ‘reply’ all they like. There’s no need to filibuster, just sit on any nominee for six months, then vote them down. There is no need to retain the filibuster either. McConnell has a particular affection for it as a function of his general uselessness.

23 Gimlet February 14, 2016 at 3:47 am

Just so we’re clear, the “nuclear option” refers to the majority removing the minority’s ability to block via filibuster, not to the majority exercising the privilege of the majority to decide things.

24 Tom February 15, 2016 at 9:21 am

Seems fair that both sides use the nuclear option. The current situation by contrast seems unfulfilling.

25 Mark Thorson February 13, 2016 at 6:44 pm

We only care about originalist interpretation when it justifies what we wanted to do anyway, of course.

What’s the longest that the Senate has blocked filling a SCOTUS slot? Seems like it’d be almost impossible to get a justice confirmed when the Senate is held by a party in opposition to the White House. Is the Senate scheduled to go into recess during the rest of Obama’s term?

26 Todd February 13, 2016 at 7:02 pm

125 days is apparently the longest time from nomination to ultimate resolution. That was for Brandeis’s ultimately successful nomination.

27 Art Deco February 13, 2016 at 7:18 pm

Fine, he can send up three nominees between now and January, and the Senate Judiciary committee can sit on each one for 124 days and the full Senate vote them down on the 125th day. No Democratic President has nominated anyone fit for the office in more than 50 years, and none will until we’re all safely and cozily dead.

28 Ammon Bundy February 13, 2016 at 8:25 pm

Harriet Myers 2016!

29 JWatts February 13, 2016 at 11:28 pm

“125 days is apparently the longest time from nomination to ultimate resolution. ”

That’s the longest period to confirm a successful nominee. The longest SCOTUS vacancy was 27 months.

https://goo.gl/WrMDE7

30 Art Deco February 13, 2016 at 7:19 pm

Which ‘we’? I love how partisan Democrats project their own corruption and fraud on everyone else.

31 Gimlet February 14, 2016 at 3:50 am

When did “originalist interpretation” become a synonym for some sort of stare decisis of the legislature?

32 Harun February 14, 2016 at 3:04 pm

Obama was madder than anyone when he learned in the papers that the IRS was targeting his political opposition.

So, of course, he immediately called up the IRS and told them to comply right away and provide all emails within 48 hours – I mean, Congress has the right to oversight, and the Executive was in complete agreement that this was a big deal, right?

Well, Obama instead decided to stonewall Congress.

Sorry, but if he gets stonewalled in return, that’s the breaks.

p.s. Democrats filibustered the budget in July. How could they do that? How could they oppose the will of the elected people??!?!?!?!

Everyone whining about not allowing Obama his nomination should look in the mirror if you didn’t care about the above.

33 Art Deco February 13, 2016 at 7:10 pm

There is no constitutional provision which requires that the Senate give its advice and consent to anyone. No clue how you got the idea that there was one.

34 Alanw February 13, 2016 at 9:01 pm

I think conservatives are panicking and talking themselves into a position they’ll regret. I understand the impulse – a lot of liberals have been waking up with night sweats imagining a conservative president in 2017 and Ginsburg passing. I think many conservatives were crossing their fingers for just that result, and now they find the shoe on the other foot.

Why this is a bad idea, however, seems obvious to me. What if it’s President Trump and Majority Leader Warren next January? Should her opening remarks be “Eight is enough”? Cooler heads need to prevail. Obama should nominate the most respected centrist jurist he can find and Republicans should confirm that person and focus their efforts on winning the election.

35 msgkings February 13, 2016 at 9:27 pm

Amen to this, let’s see just how bad things are now between the ridiculous partisans. And I count Obama as one if he surprises me and nominates a real lefty radical just to piss off the Reps. I’m rooting for his centrist and noncombative nature to win out.

36 AlanW February 13, 2016 at 9:33 pm

Agreed – I do think Obama has as serious a responsibility here as the Republicans do. Nobody is going to win by going to the mat here.

37 prior_test February 14, 2016 at 1:02 am

‘nominates a real lefty radical’

I’m truly curious – with Sanders being in many ways a fairly boring middle of the road holder of German Christian Democratic Union political beliefs (as for the Christian Socialist Union, his religious credentials are all wrong, and he seems to be less socialist than the Bavarian party when it comes to handing out money to families), who is a ‘lefty radical’ in the U.S. that someone coming from any European country would recognize as such?

America is truly an outlier, including the idea that any political or legal figure of any consequence in American politics is a leftist, much less a radical one.

(It was Angela Merkel, and her CDU that did this to the Hypo Real Estate Holding AG – ‘Nationalisation

With the German state (via SoFFin) already owning 90% of HRE, an extraordinary general meeting on 5 October 2009 approved a €1.30 per share squeeze out of the remaining private shareholders,[12] including J.C. Flowers (which a year earlier had taken a 25% stake at €22.50 per share).[13] The decision resulted in the complete nationalisation of the firm[12] within a year of it having been a DAX constituent. https://en.wikipedia.org/wiki/Hypo_Real_Estate#Financial_difficulties

Imagine Sanders having the power to wipe out private shareholders of a company in the Dow Jones Index – then try to imagine what the radical leftists in Germany were advocating, in comparison to the right of center CDU. Yep, Sanders being a ‘leftist’ is just another one of those cute examples of just how exceptional America is.)

38 Tom February 15, 2016 at 9:27 am

Germany has a former communist as conservative leader so what do they know?

39 Nathan W February 14, 2016 at 6:16 pm

Prior

Indeed, most of the world is stunned that Sanders is considered a Socialist. Focusing on that odd fact (he’s a socialist) in a general election could actually backfire a lot (because he’s not actually that much of a socialist) if people realize that the very fact of considering him as an outright socialist is an indictment of just what a right wing place America is.

But the right wingers hate to admit it’s already pretty right wing compared to a lot of places. Because they still view it as “too left” and want to bring it yet further to the right, pretending that some court decision on a matter of social justice is somehow related to the question of whether the USA is “too left”, “too right” or “just right”.

40 Larry Siegel February 15, 2016 at 4:31 am

I don’t generally like “America, love it or leave it” rhetoric, but if Bernie Sanders is not far enough left for you, I suggest you spend a few years in Cuba or Venezuela sharpening up your understanding of socialism. I prefer that politics be played within the 20- or 30-yard lines, and I don’t like the far right either.

41 Roy LC February 14, 2016 at 7:10 am

How is The Senate rolling over for the executive branch originalism, George Washington had a nominee rejected, John Quincy Adams had a nominee who the senate refused to vote on confirming, and when Jackson appointed Taney, it took a year to confirm him.

It strikes me that deferring to the President is not very in keeping with originalism.

As JWatts notes below the longest interval was under John Tyler and then Polk, it lasted more than 2 years and 6 nominees were rejected, this was in the 1840s and thus less than 50 years after the adoption of the constitution.

42 Nathan W February 14, 2016 at 6:19 pm

OK. So the Senate is fully expected to hold such a veto? Is this more in line with tradition, you are suggesting?

43 Thomas February 14, 2016 at 10:37 am

This is supposed to be a negotiation. The idea that not having a 9th Justice because of the Senate not approving anyone to the left of “x” is unconstitutional, wrong, or solely the fault the Senate is absolutely absurd. If the President can guarantee approval by nominating someone on the right wing, and he can guarantee disapproval by nominating someone on the left wing, then he is just as culpable in the event no one is approved.

44 Heorogar February 13, 2016 at 7:33 pm

Yes. They did it in 1968, when the GOP was a minority in the Senate. Apparently, Sen. McConnell has stated there will be no new justice until after President Trump is sworn in.

45 msgkings February 13, 2016 at 9:28 pm

He stated that, using President Trump specifically by name? Yeah there’s no way that’s true.

46 HH February 13, 2016 at 6:28 pm

OBAMA: I NOMINATE MYSELF

that would be a kick.

senate repubs will argue next prez should choose. but maybe obama secretly hopes the same: hillary could choose him. put all those What Next questions to rest

47 So Much For Subtlety February 13, 2016 at 6:33 pm

Obama is one of the least intellectual Presidents of recent times. Which is an achievement considering George W. He has not read, or written or even said anything remotely original or interesting.

If I could think of a more neutral term than “lazy”, I would use it. Instead I will say that Obama clearly is only interested in his golf game. Retirement is close and he is not going to put himself up for a job that would interfere with that.

But it would be funny if he nominated Michelle.

48 Art Deco February 13, 2016 at 7:14 pm

I realize it’s an article of faith on the alt-right that everyone else is stupid meat, but the notion that George W. Bush was intellectually deficient does not arise from anyone who has actually worked for him.

The notion that Obama is intellectually deficient cannot be taken seriously, either. You might argue he has no intellectual interests (many intelligent people leave their brain at the office), but neither did Gerald Ford or George Bush the Elder.

Not many people in public life both take an interest in ideas and can discuss them. Daniel Patrick Moynihan and Spiro Agnew were exceptions.

49 bulgarian license plate February 13, 2016 at 7:42 pm

Art Deco – some day someone is going to write the definitive history of the American 20th century, just as Gibbon did of the Roman centuries. I would not be surprised if that person expresses the following judgments. George W. was not intellectually deficient, except for a little bit of the laziness frequently found in recovering alcoholic party boys, but his father definitely was intellectually deficient. As for Agnew, he was a much better man than almost anyone who posts here, and he does not need me to defend him. Moynihan was a male bluestocking with some good ideas that showed he cared about people, in his limited way, but who embarrassed and betrayed his co-religionists by his opportunism. As for Obama, he completely lacked philosophical self-esteem and was, almost every time he was faced with making a decision that counted, no more than a pandering student of the powers that be, although he made people laugh or self-righteously smile from time to time. George W’s dad was very brave in his youth, and he maintained certain standards through his life, but like Obama he was no more, in his self-centered later years (which began for him in his early 30s) than what the Russians dismissively call an apparatchik (a fairly high-IQ guy whose main interests are in (A) not being too different from one’s powerful parents or mentors and (B) in keeping up with the more serviceable intellectual and political trends of one’s times and (C) in venially settling personal scores). As for Gerald Ford, I believe he personally composed the speeches he delivered at memorial services for the great WWII Admirals he served under – had he been born in the Roman Empire those speeches alone would have earned him the eternal respect of the civitas. (He was mostly a lousy President, of course – although he had a few brave moments which his perfidious opponent capitalized on to defeat him in an election – but that is a different question). The hysteresis of mediocrity, again and again , almost as much on the elephant side as on the donkey side, sadly.

50 bulgarian license plate February 13, 2016 at 7:56 pm

Sorry to sound so negative, if I had been commenting on great departed Americans like Reagan, Scalia, Frankfurter, J Vernon McGee, and Fulton Sheen, I would have had mostly only good things to say.

51 Nathan W February 13, 2016 at 8:36 pm

Nobody who becomes president of the USA could possibly be dumb (GWB).

But I think some politicians tolerate “dumb” quite easily because the alternative might lead people to ask questions which will lead some to think “wow, if he’s not dumb, he’s definitely eeeeeevil”.

Don’t let politicians get off with dumb. Always assume that they are obviously smart, and hold them fully accountable (talking media, politics, etc., not prison-related sorts of situations) like they couldn’t possibly have done anything other than the best job at what they were doing.

52 Art Deco February 14, 2016 at 10:14 am

Moynihan was a male bluestocking with some good ideas that showed he cared about people, in his limited way, but who embarrassed and betrayed his co-religionists by his opportunism.

The real Pat Moynihan had a rather peripatetic upbrininging (divorced parents, conflicts with step-father) which included a period of years living in the Hell’s Kitchen section of Manhattan. No, that’s not how bluestockings lived ca. 1939.

53 Art Deco February 14, 2016 at 10:18 am

Do us a favor and sober up before you post in the future.

54 The Original D February 14, 2016 at 11:54 am

We can only hope that, when this definitive history is written, the historian uses paragraph breaks.

55 Rich Berger February 13, 2016 at 9:05 pm

Why don’t you offer us some examples of Obama’s intellect? Should be easy.

56 Art Deco February 14, 2016 at 10:17 am

I dunno. Maybe graduating from Harvard Law School with honors. (See William Dyer’s remarks on this point). The problem with Obama is not that he’s intellectually deficient. It is his traits of character which make his intellect useless (which one can divine from looking at his years as a working lawyer and his years on the Chicago law faculty).

57 The Original D February 14, 2016 at 11:55 am

Unlike most politicians, he actually wrote his book instead of using a ghostwriter.

58 Nathan W February 14, 2016 at 11:58 am

As s politician, he’s gotta dumb down basically everything so “the masses” don’t think he’s talking down to them.

Like the guy or not, Art is correct in pointing out that honours in Harvard Law is a pretty incontrovertible proof of strong intellect. As much as I didn’t like GWB, I routinely had to make similar reminders about GWB’s academic background, which is far from weak, and includes winning debate competitions, which you can’t do if you’re dumb.

59 Art Deco February 14, 2016 at 1:44 pm

Unlike most politicians, he actually wrote his book instead of using a ghostwriter.

His books were inconsequential and his life to age 45 did not merit any memoir. While we’re at it, at the time he wrote his first book, he was a 30 year old unemployed lawyer whose most serious job had been an 18 month stint as a copy editor for a commercial company which produced corporate newsletters. Why would the publisher hire a ghostwriter for him? At the time he wrote his second, he had an academic post. What do professors do with the plagiarists in their midst, eh?

I think Gary Hart writes his own stuff.

60 Thomas February 14, 2016 at 10:44 am

“Don’t let politicians get off with dumb.”

Nathan W. on Hillary Clinton’s claims of technological incompetence. Just kidding. She’s just dumb.

61 Nathan W February 14, 2016 at 12:00 pm

Yes, I was seeing the contradiction.

Legally speaking, I wouldn’t let her get off with dumb. But let’s be honest, a lot of old fogies aren’t sure about all that technological gobbledygook. Which is why I defend as a response to the scandal that some techie should be assigned to make sure some handful of uppers can’t possibly make mistakes in related affairs.

62 bulgarian license plate February 14, 2016 at 5:10 pm

Art Deco – feel free to post as much as you want. However, if you don’t mind my helping you out with respect to your reading comprehension, please consider whether it is even remotely likely I was referring to Moynihan circa 1939 in my comment. A big hint is the use of the word “co-religionist”; anyone familiar with Roman Catholic politicians in the U.S. in the 20th century would not have made the mistake you made . By the way, my family, by coincidence, lived in Hell’s Kitchen too, back in the day. You are, perhaps, not as relatively well informed as you believe. Nice touch, though, slyly bringing drunkenness into a discussion of Irish-American politicians. (Last sentence was sarcastic, by the way).

63 bulgarian license plate February 14, 2016 at 5:40 pm

Art Deco – I will not reply to you further, even if you disagree with me again, but , if you are a Catholic, I would be interested in your version of a Catholic’s brief assessment of Moynihan’s career.

64 Art Deco February 14, 2016 at 6:15 pm

bulgarian license plate: ‘bluestocking’ is a cultural designation. You were referring to his origins or you were referring to nothing at all. My grandmother might have qualified as a bluestocking, though a quite reticent one. She didn’t grow up in Hell’s Kitchen.

Moynihan spent his adult life in the BosWash corridor among politically-connected people and was steeped in that culture. Sargent Shriver and Eugene McCarthy were sufficiently grounded in Catholic thought and practice that the cultural shifts within the Church and without it washed over them to a great degree. Not so Moynihan or most people in his class and nexus of associations. (He actually had no association with the then vigorous Catholic higher education; some who did like Rudolph Giuliani turned out to be lousy Catholics).

65 Dan Weber February 16, 2016 at 11:54 am

Seriously, every President of my lifetime has been very smart, easily an IQ over 120.

This doesn’t mean they are necessarily good presidents, or have good policy. But none of them have been dumb.

66 Dan Lavatan ✓Unverifiable February 13, 2016 at 7:31 pm

Bush said if he was fooled once he couldn’t be fooled again. It was both original and interesting.

I’m not sure how he would score on a fair IQ test, but he certainly let Cheney manipulate him.

67 liberalarts February 13, 2016 at 8:50 pm

I am pretty sure that Pete Townshend had 30+ years on that statement.

68 Heorogar February 13, 2016 at 7:34 pm

No, the first thing President Hillary does is pardon herself and Bill.

69 Gimlet February 14, 2016 at 3:54 am

It’s really not that hard to imagine he wouldn’t get a majority approval. The man went from junior associate to community organizer to law professor to elected official – no judicial experience at all (and not a whole lot of practicing attorney experience – or even law professor experience).

70 megamike February 13, 2016 at 6:44 pm
71 Chip February 13, 2016 at 7:01 pm

“What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

Antonin Scalia

72 UncleMartyPants February 14, 2016 at 6:39 am

Thanks for this one, Chip. RIP Scalia.

73 The Original D February 14, 2016 at 11:56 am

By this logic the right to bear arms includes nuclear weapons.

74 Nathan W February 14, 2016 at 12:02 pm

Indeed.

After all the guns nuts insist on emphasizing “shall not be infringed” in that sentence, and are basically uninterested in any interpretation of what the rest of that sentence meant then or should mean now.

75 TMC February 14, 2016 at 1:19 pm

Why is it only the gun nuts* who make claims about nukes being legal for everyday citizens?

* your definition of ‘gun nut’ may differ from mine.

76 Art Deco February 14, 2016 at 1:55 pm

No, they’re familiar with the practical aspects of gun ownership and use and with the mundane impact of the regulations. They understand passably what the logic of babble about ‘sensible gun regulations’ is: confiscation of extant stocks of guns.

When people are at liberty, they sometimes do the wrong things with that liberty. There are trade-offs incorporated into enacting strictures which constrain their discretion. We have gun regulations up the wazoo. If you want to inhibit events like that at Newtown, you have to confiscate guns. Nancy Lanza was in compliance with Connecticut law, owned just four guns, and had a gun safe. Her bizarro son did not care if he lived or died. That type of person is hard to deter or contain.

77 Nathan W February 14, 2016 at 6:40 pm

“They understand passably what the logic of babble about ‘sensible gun regulations’ is: confiscation of extant stocks of guns.”

I didn’t know you were subject to such forms of paranoia. Closing all loopholes for background checks is not on the slippery slope to confuscating everyone’s guns. Seriously. That is an intellectually bankrupt association.

If you’re going to support guns, please don’t stoop to just paranoid lame bullshit. I don’t mean it personally. But think it through for a minute. That is bull shit.

78 Nathan W February 14, 2016 at 6:42 pm

Oh, but Lenin said that if you take everyone’s guns they can’t fight back or some such other lame sort of connection.

And therefore universal background checks is a virtual guarantee of confiscation and dictatorship. Dude, you’re not that dumb. You obviously support gun rights. But that is lame propaganda.

79 The Original D February 15, 2016 at 6:12 pm

They understand passably what the logic of babble about ‘sensible gun regulations’ is: confiscation of extant stocks of guns.

Because that’s happened so many times in our history.

Note that I said our history, not that of Germany or the Soviet Union or whatever other repugnant dictatorship you want to compare Obama to.

80 BC February 13, 2016 at 7:19 pm

Coincidentally, George Will’s latest column points out that more liberals are coming around to Scalia’s view that economic liberties and civil liberties ought to be treated the same [https://www.washingtonpost.com/opinions/progressives-anti-free-speech-itch/2016/02/12/387c1522-d0e8-11e5-b2bc-988409ee911b_story.html]. The direction, however, is the oppositie; liberals would like to weaken both, specifically wanting to weaken free speech rights. After all, if economic rights inhibit government’s ability to equalize wealth, then free speech rights inhibit government’s ability to equalize political influence.

81 Dan Lavatan ✓Unverifiable February 13, 2016 at 7:36 pm

I would be more worried about the opposite. They think money is important, so everyone is entitled to a basic income of 50k a year, free unlimited education, healthcare, transportation and exhibition space for their artwork. Even the soviets guaranteed everyone a free printing press.

82 Nathan W February 14, 2016 at 12:03 pm

Proposals of a guaranteed minimum income that I’ve seen bandied about are in the range of 10-15k a year.

Hardly luxurious. Most people really want a lot more than that.

83 robert February 14, 2016 at 12:08 pm

From Ayn Rand:
“Both [conservatives and liberals] hold the same premise—the mind-body dichotomy—but choose opposite sides of this lethal fallacy.

The conservatives want freedom to act in the material realm; they tend to oppose government control of production, of industry, of trade, of business, of physical goods, of material wealth. But they advocate government control of man’s spirit, i.e., man’s consciousness; they advocate the State’s right to impose censorship, to determine moral values, to create and enforce a governmental establishment of morality, to rule the intellect. The liberals want freedom to act in the spiritual realm; they oppose censorship, they oppose government control of ideas, of the arts, of the press, of education (note their concern with “academic freedom”). But they advocate government control of material production, of business, of employment, of wages, of profits, of all physical property—they advocate it all the way down to total expropriation.

The conservatives see man as a body freely roaming the earth, building sand piles or factories—with an electronic computer inside his skull, controlled from Washington. The liberals see man as a soul freewheeling to the farthest reaches of the universe—but wearing chains from nose to toes when he crosses the street to buy a loaf of bread.

Yet it is the conservatives who are predominantly religionists, who proclaim the superiority of the soul over the body, who represent what I call the “mystics of spirit.” And it is the liberals who are predominantly materialists, who regard man as an aggregate of meat, and who represent what I call the “mystics of muscle.”

This is merely a paradox, not a contradiction: each camp wants to control the realm it regards as metaphysically important; each grants freedom only to the activities it despises. Observe that the conservatives insult and demean the rich or those who succeed in material production, regarding them as morally inferior—and that the liberals treat ideas as a cynical con game. “Control,” to both camps, means the power to rule by physical force. Neither camp holds freedom as a value. The conservatives want to rule man’s consciousness; the liberals, his body.”

84 Nathan W February 14, 2016 at 7:13 pm

Funny how Ann Rand recognized that it is the conservatives, not liberals, who want control over what people think and do. Consider harsh punishment for drugs, the desire to control a womam’s reproductive decisions, or to use state funds to subject a child to a particular form of religious indoctrination without exposure to other doctrines.

Yet, there is no shortage of those on the right are always claiming that it is the liberals who push for strong censorship (which would be rather orwellian for the fact that the word “liberal” means essentially the opposite of this), for the fact that most of the main news outlets fail to report the news in a way which portrays certain groups that they hate in a maximally negative light, or for failing to publish things which would make racist people, behaviours or policies look good. Consider that there are many liberals who use free speech to criticize racist free speech speech to the tune of asking for someone to lose their job (and holy smokes, isn’t it pre-anticipated for partisans to call for resignation at the least sign of slipup in the opposition?).

Be liberal, yet call for someone’s resignation? Damn straight. No form of hate speech remotely passes the smell test of the principle “do whatever you want to do unless it hurts someone”.

Racist and homophobic speech hurts people. It should not be tolerated. It is a violation of the principle that we give up significant sovereignty to the state, in exchange for protection. A failure to at least try to deter racist speech is an abrogation of the social contract.

It is only by accident of the fact that free speech is altogether too critical to prevent so many different kinds of tyranny and problems, that calls to use state power to curb racist and otherwise damaging speech are exceedingly rare, and generally unpopular. Exceptions to this, however, are abundant in education and the workplace, and thank God for that, because no one, and I need no one, should have to deal with someone at work or school going around and slandering and insulting someone on the basis of any sort of group affiliation. That’s harassment, and harassment is illegal.

That the use of free speech to oppose racist free speech should be perceived as anti free speech is an absurdity that only a diehard racist could uphold. It’s not like the free speechers who ask for resignation of racist people in power positions are demanding application of hate speech laws or criminal treatment. Unless they are promoting violence against another group. No society can remain at peace if it is legal to promote violence against any other member of that society.

Free speech which merely states that the other free speech is undesirable is FREE SPEECH. It’s not like the police are raiding the offices of any racists on the basis of the demands of the mob.

_______________

I’m trying to understand your argument that liberals want to control the body. I draw a blank. Can’t, even , fathom.

Also, I think the way you conceive or group together ” conservatives” and “liberals” is quite off the mark in several cases. I was just using your Ann Rand quote as a stepping stone to describe some hypocrisy which inhabits some of the more extreme vestiges of the right.

85 Art Deco February 13, 2016 at 7:28 pm

RIP

86 Mark Thorson February 13, 2016 at 7:50 pm

What if Obama nominated Ted Cruz? That would sail through the Senate. Cruz would probably accept — he’d probably choose a SCOTUS appointment in hand vs. gamble on becoming POTUS. He’s also very qualified — he’s no Clarence Thomas.

But, it ensures Trump is the nominee. That decides the election in favor of Hillary. It’s sort of like how the Hitler-Stalin Pact ensured Germany would attack France first, the Allies would side with the USSR in the war to come, and bought the USSR another year to prepare for the war. Very clever on the part of Stalin — arguably that move decided the war in Europe.

87 TMC February 14, 2016 at 1:22 pm

“he’s no Clarence Thomas” Clarence Thomas has turned out to be a pretty damn solid justice.

88 prior_test February 14, 2016 at 2:46 pm

Who has remarkably little to say. Which probably helps when dealing with this in your marriage – ‘In January 2011, the liberal advocacy group Common Cause reported that between 2003 and 2007 Thomas failed to disclose $686,589 in income earned by his wife from the Heritage Foundation, instead reporting “none” where “spousal noninvestment income” would be reported on his Supreme Court financial disclosure forms.[186] The following week, Thomas stated that the disclosure of his wife’s income had been “inadvertently omitted due to a misunderstanding of the filing instructions”.[187] Thomas amended reports going back to 1989.’ https://en.wikipedia.org/wiki/Clarence_Thomas#Personal_life

89 Art Deco February 14, 2016 at 6:00 pm

His wife earns a salary from the Heritage Foundation, which was likely known by anyone who covered him or went to the trouble of checking the Heritage Foundation website.

90 msgkings February 14, 2016 at 7:43 pm

It’d be amusing to see you defend Thomas’ wife’s obvious political handout job while still accusing Michelle Obama of receiving the same thing before Obama got elected.

91 middyfeek February 14, 2016 at 3:43 pm

It was almost two years from the signing of the pact to Operation Barbarosa. And even after the Germans invaded Stalin couldn’t believe it. In fact, from all reports he damn near had a nervous breakdown over it.

92 Ray Lopez February 13, 2016 at 8:06 pm

CNTRL + F + “Lochner” yields no hits. This is a remarkably jejune op-ed by TC, which shows you should not dabble in areas outside of your expertise (economics and chess). Maybe “Rayward” will chime in and set us straight?

93 you know what I'm sayin'? February 13, 2016 at 8:07 pm

painkillers overdose

94 JWatts February 13, 2016 at 8:57 pm

Rest in Peace

95 Lord February 13, 2016 at 9:01 pm

Conservatives want a non activist court??? Seriously? Since when?

96 Sleazy P. Martini February 13, 2016 at 11:49 pm

Since I crushed your old lady’s pussy.

97 Lord February 14, 2016 at 11:06 am

There are no conservatives on the court.

98 Heptagrammaton February 13, 2016 at 10:27 pm

De mortuis notwithstanding, Scalia did us all a bad turn indeed when he joined the majority in Gonzales v. Raich. Up to that time, decisions like Lopez and Morrison were slowly defining limits to Federal overreach. Unfortunately, Scalia let his visceral dislike for recreational drugs overcome his federalist principles; and the precedent established therein cleared the way for the Court’s OK’ing of the Affordable Care Act, and undoubtedly many more questionable exercises of the federal government’s power.

99 Tom Warner February 13, 2016 at 10:29 pm

Y’all do understand that wanting to reverse Roe vs Wade was the alpha and omega of the supposed “originalist” movement, no? There’s no objective case that conservative justices really care about original meaning. Both sides are equally capable of convincing themselves that whatever outcome fits their beliefs must have been what was originally intended.

100 R.I.P. February 13, 2016 at 11:12 pm

Cass Sunstein’s facebook post says it all: “Devastated by Justice Scalia’s death. He was a colleague of mine at Chicago, and a person of immense kindness and generosity — not least to yours truly as a kid law professor. He was also one of the most important justices ever, and among the Court’s three greatest writers, and whatever you think of his votes, he was committed to one thing above all: The Rule of Law. As much as anyone on the planet, he was also full of life. A good man, and a great man, and a devastating loss.”

Great man stuck in a wretched system. Whenever the US has that Article V constitutional convention, it should replace its failed Supreme Court with the one modeled upon the Supreme Court of the Netherlands. And replace the godawful institution of the Presidency with a Federal Council like that of Switzerland. It is important to remember what Scalia was devoted to was the rule of law, not the US Constitution per se.

101 Brian Donohue February 14, 2016 at 9:30 am

Great comment.

102 Art Deco February 14, 2016 at 10:09 am

Switzerland is Switzerland. The two other loci in the world which have attempted a conciliar presidency would be Uruguay (within a constitutional system) and post-Tito Yugoslavia (within an authoritarian system). It ended rather badly both places.

We do need to cut the presidency down to size. Some of that can be done through the appropriations process, statutory law, and changes in the institutional culture of the White House and Secret Service (for starters, stop broadcasting the President’s movements ahead of time bar in truly exceptional circumstances; reduce foreign travel to a minimum, recalling that Harry Truman presided over some of the most consequential diplomacy in American history while traveling abroad 3x in 8 years; cut the fleet of presidential aircraft down to two; and limit post-presidential perks to a security detail for 12 years, a retirement purse, and a correspondence office). Constitutional changes might include eliminating the presidential veto over legislation, instituting a discrete and enforceable non-delegation doctrine re legislation, granting Congress a franchise to set up a parliamentary ministry in certain contingencies; and modifications to election procedures, tenure of office, and eligibility requirements.

103 Nathan W February 14, 2016 at 1:00 pm

I think the veto gets abused sometimes, but I think it’s good to have an additional check against Congress and the Senate. Since the president himself enjoys only poor ability to personally draft legislation in the USA, the potential for over-reach is already quite limited.

In Canada, for example, the power of the prime minister is significantly more than that of the president in his/her own system, although the comparison may not seem that relevant for the fact of just being a smaller and less important country.

Is curtailment of formal allowances of presidential power truly desirable? As it stands, in many areas the USA has great difficulty exercising executive function as it is.

104 Art Deco February 14, 2016 at 1:51 pm

Separation-of-powers does not incorporate cabinet collegiality. The palace coup which disposed of John Gorton in Australia in 1971 and that which disposed of Margaret Thatcher in Britain in1990 would not be possible in the American system. Cabinet secretaries here are typically professionals with a political connection (think Madeleine Albright or Condoleeza Rice) rather than politicians dealing with other politicians as equals.

105 Nathan W February 14, 2016 at 7:27 pm

So, because party mechanisms cannot depose the president there has to be stronger checks against him/her?

106 Yancey Ward February 14, 2016 at 12:05 am

Obama can probably get a nominee through before his term expires, but I don’t think he is willing to try since his most ardent supporters are the most inflexible on the issue, and it is those supporters that are largely left for lame ducks. There are candidates that the Senate would swallow, even if unhappily. However, I don’t think Obama is in any mood to try for a compromise, and he really is the one who needs to make the first move, though I wouldn’t be surprised to see the Senate leadership publish out a list of five or six that runs from conservative to the squishy middle, and it will have to be someone with a pretty long judicial record who has disappointed both parties over the years.

I expect Obama to stick in the Senate’s face and nominate someone with no chance at all.

107 Donald Pretari February 14, 2016 at 2:31 am

Someone needs to explain to me how Scalia’s death led to this thread. Unreal.

108 Thiago Ribeiro February 14, 2016 at 7:23 am

In America’s system, the Supreme Court has a great influence (as shown by judicial battles regarding Obamacare, abortion, racial segregation), sometimes overruling the elected officials. Scalia was a Conservative Supreme Court judge, but now he is dead. Mr. Obama, a liberal, is the sitting president and gets to choose a replacement. Conservatives are not happy about it. The Republican-controlled Senate can refuse to accept Obama’s nominee. Liberals are not happy about it. People are unhappy and, as a consequence, they are being mean. Blind, angry partisanship is tearing America apart.

109 Ammon Bundy February 14, 2016 at 9:53 am

Seriously, what plays out is not abstract philosophy, economics and the law.

The Bundy clan went down fighting (a smidge less than literally) for a fringe view of the Constitution cobbled together to support their identity.

In last night’s debate we saw a less fringe version of that, but again a minority have an interpretation of the Constitution supporting their identity. Take back America, implicitly from a majority, who view it differently.

I guess, my perspective is that it is a harder road than minority believers think at the time.

110 Horhe February 15, 2016 at 3:26 pm

Everything is relative when one can elect a new people.

111 jseliger February 14, 2016 at 12:15 pm

I disagreed with him on many issues, but his presence on the Court was an important stepping stone for law and economics, and for philosophy as well I might add.

I found him much more heterodox than the other court conservatives, which is rather refreshing.

Sometimes simply thinking things in ways that other people don’t think is valuable.

112 Nathan W February 14, 2016 at 1:03 pm

The way I read a lot of more right wing analyses of Scalia, it’s as though he exposed profound wisdom in many areas of reasoning.

But what little I know of him, it seems more as though he simply summarizes some more conservative preferences, dressed up in some nice language.

113 Mark Thorson February 14, 2016 at 1:08 pm

What are the chances of a second SCOTUS judge dying during Obama’s term? If there were two slots to fill, that would open up an opportunity to negotiate a deal before the election. Both sides might prefer the certainty of a compromise over gambling on winning the election.

114 Nathan W February 14, 2016 at 7:32 pm

Maybe someone knows an actuary with a few spare hours on his/her hands and connections to an editor willing to pay them for their time?

But I don’t think the lifestyles of SCOTUS judges are statistically comparable to other populations for actuarial purposes, and the sample of all judges is too small, never mind the fact that huge lifestyle changes have occurred through time within that subsample.

It would be half curious to see some sort of estimate though.

115 Tom February 15, 2016 at 10:00 am

Ginsburg could take the opportunity to retire.

116 Nathan W February 14, 2016 at 2:14 pm

This guy’s on the Supreme Court of the USA and he thinks it would be “pernicious” to use economics analysis for seeing the benefit of dogs or trees?

I mean, I’m not sure what use could be made of such a study for any practical purpose. But “pernicious”?

I bet he was a bigtime anti-environmentalist, drill baby drill sorta guy. Not like a supreme court justice can put it in those words and maintain any illusion of impartiality.

117 e abrams February 14, 2016 at 2:56 pm

my impression, reading left and right websites, is that liberals denounce scalia in specific ways, often citing decisions, while conservatives praise him for originalism without specific citations, or citations that are relatively minor

i cant’ get past a guy who is a gay bigot and thinks it is ok to excecute retarded people; i don’t care how brilliant he is, he is not a mensch

118 Art Deco February 14, 2016 at 5:57 pm

What’s a ‘gay bigot’?

You do understand there is a distinction between and inadvisable policy and a policy that contradicts extant legislation? Or that a capacity for moral choice is not a simple derivative of intelligence? (No, you don’t, we get it).

119 Nathan W February 14, 2016 at 7:42 pm

Indeed. One doesn’t have to be a “gay bigot” to agree with the traditional Christian definition of marriage. It is the way in which that position is defended which reveals the person as a bigot.

E.g., there’s a big difference between “the Bible defines marriage as ABC and I want the legal definition to stay that way, and there’s nothing more to it really than that” and that rather long list of offensive statements which basically imply that the fact of any given person being gay makes America a worse place.

120 Larry Siegel February 15, 2016 at 4:14 pm

If there is a moderator could you please delete this thread. There is nothing wrong with a little adult language to express emotion but it should have a communicative purpose. The comments here do not. Thank you. Larry

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