I had the pleasure of meeting Justice Scalia a few years ago. I do not share his legal philosophy, but he is a very impressive man. Obviously hugely intelligent, charming, unpompous and willing to engage in debate.
The same liberals who wish to unseat the constitution in the name of democracy…. Don’t believe in it because their rhetoric… to rule the masses is much much more important.
One of the most brilliant legal minds in the history of the court. He also seems like a wonderful human being as well. I also adored his deep friendship with Ruth Bader Ginsburg.
@Joe it's amazing how stupid you people are. Everything we know of Scalia tells us he'd find your bullshit comment absurd. He wouldn't have been on your "team"
@Joe Don't make this partisan, he states explicitly multiple times in this interview that his actions as a judge operated very differently from his own personal beliefs. He was a judge and not a party member.
He would bristle at being referred to as a "constructionist." He was not -- at least not a _strict_ constructionalist. One ought to start with reading the text of a law with a constructionist's eye; but if it's clear that such a narrow interpretation is not what was meant to the drafters the approach stops there. He preferred adhering to the _letter_ of the law as opposed to trying to divine the "spirit" of the law; but not to the point where words admit of no other interpretation beyond what the words say. He gave specific examples in this interview.
48:50-49:20 Marvelous! Put on smile on my face that Justice Scalia appeared almost offended by the interviewer identifying him as an Italian American. He honestly loved his/our country. This is how all United States citizens should identify ourselves; not African American, Asian American, European American, etc. I'm an American, of _______ decent.
The interviewer said "and you're an Italian" not "Italian American". Scalia was surprised because what the interviewer said was not congruent with what Scalia was just talking about: "Italian law", that is, the law as it is in the nation of Italy. Scalia clarified that he is not "an Italian" in the sense of an Italian national. He has used Italian American elsewhere.
"Let every American, every lover of liberty, every well wisher to his posterity, swear by blood of the Revolution never to violate in the least particular the laws of the country; never to tolerate their violation by others. As the patriots of seventy-six did to support the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property and his scared honor.” PRESIDENT ABRAHAM LINCOLN (p.67-68; Camelot and the Cultural Revolution; JAMES PIERESON; Encounter Books; New York; 2007)
One of the brilliant things about Justice Scalia was that his judicial philosophy caused him to view his colleagues in the highest regard (seeking to do good) instead of immediately jumping to a harmful, judgmental conclusion (judicial activism.) It was always a pleasure hearing his views of others that differed from his own. We need that nowadays.
Well, I don't think _any_ justice would have in mind to accede to the bench to do something sinister. The Warren Court, for example, was replete with erudite, well-educated and preeminently qualified lawyers, judges and jurists, who simply wanted to do justice to _the law._ They just happened to have a judicial philosophy that set the job of interpreting law on its head. If anyone has sinister intentions it's the President who nominates someone to the Supreme Court who they expect will do their bidding or will at least pander to the ideologues in whatever party they're in. That's one thing people fail to understand about these justices is that they are colleagues, mutually respectful of each other, and devoted to the _law,_ and are _not_ just extensions of a political party's central committee or platform. I may embrace one judicial philosophy over another, but I don't look askance at any justice who earned their place on the bench as jurists who are devoted to the law, their profession, and their purpose. Leave that to the political hacks and rabid partisans.
huskerfaninNJ Oh OK. So you name call. I will assume you are still in grade school then. Let's chat when you're an adult and know how the world works, OK?
"In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of nom sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." "Where there is an excess of Liberty, the effect is the same tho' from an opposite cause.” James Madison (Property; National Gazette; March 29, 1792)
FEDERALIST #62 James Madison II. It is equally unnecessary to dilate on the appointment of senators BY THE STATE LEGISLATURES. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. Publius
@@kirkbowyer3249 I have come to believe that this was the single worst change in law in our nation’s history, followed by the 16th amendment, because it enabled so many ill-advised decisions that followed.
Part 2. And because we would come to different conclusions, we are reading subjectively. All interpretation is subjective! In fact, in academia, studies show that when interpreters read for intent, they tend to leave the actual meanings of the words in front of them and find a meaning that is outside the text, and they have the widest degrees of differing interpretation. Which means the originalist hermeneutic is actually one of the most subjective modes.
Subjective,what one sa says, objective, open minded interpretation, assessing interpretation?,so what really is the meaning of the actual wording,and how its applied in sentence?
55:30 Justice Scalia loses a bit of his famous logical rigor: when defending Citizens United "People are intelligent and can discern the truth from the false", but televising the Supreme Court proceedings would be bad because the American people would not watch gavel to gavel and ask stupid questions?
It would only be a diehard view that would watch from gavel to gavel. The rest would get their view of the court from non-contextual sound bites and video clips.
hi, sorry to necro a 3 year old post, but it's less cruel because the electric chair kills the person instantaneously if the right voltage is applied. that responsibility goes to the people administering the electric chair, which were infamous for messing it up.
Yeah, I get that. My point is is that I don't think orginalism is, on the whole, possible. One can try and one can derive a great judgement now and then. I don't deny that. But it is a few steps away from believing in telepathy. When I was talking about micro/macro influences (by the way) I was talking about semantic changes and the economic environment that shapes our temperments and ideologies, which are different with every epoch. I don't know if we've reached an impasse but it was nice.
Well, collective intentional behaviour would fall within a Foucaultian analysis. But to build up that kind of reading takes a lot of historical research to do it accurately. Ideologies change, and the public has a tough time understanding different ideologies in their own time, let alone the understanding the macro and micro-logical influences constructing different ideologies of centuries ago. Personally, I would focus on ambigous and precise language and not make discisions far from precedence
Yeah, when he talked about cruel and unusual punishment, I agreed. And, I do at times like the argument by analogy, even though in Citizens United he took an analogy to reductio ad absurdum, and so goes the American Republic to oligarchy. I have read his essay, 'A Matter of Interpretation.' Ronald Dworkin wrote a 'Comment' that you should check out if you haven't already. I obviously agree with Professor Dworkin. Scalia also wrote a response to Dworkin.
Also, if haven't read structuralism (particularly Saussure's Course in General Linguistics), Derrida would be harder to understand. So check that out; it's pretty short. And if you have read Saussure already, then I guess Derrida will have to wait. But that reading should make Derrida more accessible. And although it's an oldie, "The Intentional Fallacy" by Wimslett and Beardsly is a good read. And Stanley Fish shows the affactive power of texts and how the reader completes its meaning.
“Government is instituted to protect private property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is just government which impartially secures too every man, whatever is his own.” James Madison (Property; National Gazette, March 29, 1792)
+Em Jay Enn, no one disrespected our constitution and the Founders more than him. May he now meet his maker and suffer the consequences of his horrific votes as a justice.
Em Jay Enn Oh yes, I am sure the Founders and Framers of the 14th Amendment totally had in mind "No state shall count the votes of the people during a presidential election when the Supreme Court doesn't like who might win." Sure that's what they totally thought.
You are correct about what he is burdened to do. But original point was his ignorance towards deconstruction, which if you have read, is deeply challenging to his hermeneutic theory. And as I noted, the philosophers of opposing schools still argue in light of deconstruction. Moreover, Scalia is not a literary critic; this isn't literature, it is law, it's a "living constitution," not the 10 Commandments. But originalism does have its moments, but not as a strict hermeneutic.
I confess; I read Derrida; I never got him. I like Rorty. I'd be interested what these "deeply" challenging points are against originalism are that do not apply to judicial review in general. John Searle sums it up well: 'there really is collective intentional behaviour as distinct from individual intentional behaviour. You can see this by watching a football team execute a pass play or hear it by listening to an orchestra'. All laws would be mysterious if they had no 'public' meaning.
Yes but he listen to him (and read him) he notes he argues by analogy. Hence, why we need judges: they ask does new phenomena Y (say the electric chair) have features X, Y and Z at the time of the framing? (it was adopted to be less painful than hanging, hence not unconstitutional). Where the debate is at is ex ante phenomena: the death penalty, abortion etc. Likewise, you use dictionaries to determine "arms" (and limits on the term we can use the tort of afrightening)
That's because you're a partisan hack trying to masquerade as intelligent. Brian Lamb has done more to impartially educate the American public than almost anyone else over the last 50 years. Scalia was indeed brilliant but not because he's on your "team". You're just too stupid to appreciate the nuance of his brilliance.
@@matthewomalley6732 Lol. You’re not going to persuade anyone of anything by calling them political hacks. I also think the interviewer did a good job. The interviewer simply doesn’t work in law and doesn’t understand some of the intricacies of it.
@@LegalAutomation I don't plan to convince anyone who calls Brian Lamb "fake news media" of anything. With that kind of political delusion it'd be a waste of my time
Too bad because he is one of only a few who actually pays attention to details and lifts up the critical layers to try and understand the wrong indirect effects of their decisions.
"The advice nearest my heart and deepest in my conviction is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise." James Madison (Property; National Gazette, March 29, 1792)
“For man when perfected, is the best of all animals, but, when separated from law & justice, he is the worst all; since armed injustice is the more dangerous, and he is equipped at birth with arms, meant to be used by intelligence and excellence, which he may use for the worst ends. That is why, if he has not excellence, he’s the most unholy and the most savage of all animals, and the most full of lust and gluttony. But justice is the best bond of men in states; for the administration of justice, which is the determination of what is just, is the principle of order in a political society.” Aristotle; Politics; Book I, Section 2.
Ignorance of the "law" is no excuse for anyone but the lawmakers. If two lawyers and a judge cannot agree on what a law means, how are the great unwashed to understand it when bankrupted by paying for their own defense for "crimes against the state" with it's unlimited resources, stacked deck, malicious prosecution and crooked judges?
We live in a world of 15 seconds take-out~ Fake News Foreign media destroying the USA. Just like the Nazi's take over News , Police, burning removal of status & bad medicine. Communist News Net .
"See generally, The Federalist Papers" is proving my point. Both of us will come to a different interpretations of The Federalist Papers and how we relate them to the Constitution. Where's the originalism? The interpreter's consciousness still dominates the understanding of the words, and it is naive to think that one could summon the vision of people who lived in a different time with a different economic and social reality. That's why originalism is just a way of seeming authoritative.
This man argues that the strict letter of the law shall not be absolute in the case about laying hands on a priest, but, not 3 minutes later, goes on to defend textualism as a strict reading of the letter of the law. What an abominable doctrine and an absolute fool of a man for, despite his intelligence, subscribing to it
You misunderstand. Scalia wasn't a textualist. He was an originalist: "The meaning the text had at the time it was written" Details matter ... please be more careful.
54:40 Oh Antonin... People are idiots. That's why it should only be land owners that are allowed to vote. People who at least have vested interest in the country actually surviving, not just people (minorities) who want free stuff from the charity government.
In the big questions - the death penalty, abortion, assisted suicide, SSM its a piece of cake. Taking power from the people and placing it instead with a judicial aristocracy can produce some creditable results that democracy might not achieve. The same can be said of monarchy and totalitarianism. But once a nation chooses democracy, with all its warts, the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is.
He argued that allowing Corporations to donate is a matter of free speech. The basis of our democracy, he said, is that people are smart enough. If they wanted to know who's paying for the commercials the information is out there. In other words, we shouldn't underestimate the people, we can trust their intelligence. The following question was about cameras in the Supreme Court. He's argument was basically, we can't trust people. All they will see is 15-30 second clips. Contradiction?
I'd happily prefer the Dutch or Swiss system (i.e. no judicial review nationally); but when you have a constitution I still think originalism is superior. Dworkin has, in part, changed some of his mind since). In his reply, Scalia notes 99% of the time it is a piece of cake. Where you don't know or one is unclear, you defer to the people or the legislature. PS Even originalists are not originalists 100% of the time (hence, Scalia's disclaimer - not everything here I will apply in practice)
Only thing the supreme court can do is interrupt the laws, and the laws from a long time ago aren't that clear, but they are the laws. Because of the 10th amendment, congress can't make a law that forbids states to do something, so they'd have to pass an amendment that specifically protects the rights of what people do in the bedroom, which is very hard because 3/4ths of the states have to also agree to it, which will probably never happen with how divided the country is.
Thinking that original intent if available to you or Scalia is subjective. It's all subjective at some level. Ever read about semiology? In academia, originalism is seen as one of the least objective hermeneutics. There is this theory called the 'intentional fallacy,' which is old, but the Deconstructionalist school took if further and is pretty solid theory today; a lot better than the telepathy Scalia seems to think he has.
9:52 every AP US History student read every federalist paper. I highly doubt the majority of law students haven't read them. Reading the federalist papers and being a modern conservative feels hypocritical
As I said, not all people who claim to be originalists are originalists and your arguments are against judicial review itself (i.e. personal preference overwhelm an opinion), not against originalism per se. On the big issues - Thornton v Arkansas; Romer v Evans; Gonzales v. Raich; Lucas; Jordan v Silver etc etc - originalists defer to the people. Same with the Establishment Clause; had originalism dominated in the 1960s most laws by the people would have been upheld.
Federalist #10 James Madison; Daily Advertiser; Thursday, November 22rd, 1787. “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of the other citizens, or to the permanent and aggregate interests of the community.” Publius
It is democratic because under an originalist methodology cases like Romer v Evans, Reitman, Perry, Plyer v Doe etc would be upheld. Does equal protection ban affirmative action? Similarly, who the hell are judges to tell us what "applies to our time"? I thought we had ballot initiatives and legislatures to do that for us. If the meaning is not fully available an originalist can concede "I am not satisfied this meaning is accurate beyond reasonable doubt" and let the democratic choice prevail.
I'm not just name dropping philosophers. If you listen to Scalia, he says phrases like, "I don't think the Framers had in mind automatic rifles when they wrote the second amendment." He has no idea what the Framers had in mind, but in the second there is an ambiguous word, "arms," which could mean anything. By saying stuff like that (which he recently did) he is merely trying to make his interpretation sound authoritative. For precise language, the realm of interpretation is limited anyway.
You are not getting what I'm saying because it has more to do with linguistics and how we actually read than The Federalist Papers. You are essentially asking me to read in a Foucaudian mode by filling in historical context, which actually takes historical scholarship to do it accurately (and Scalia doesn't believe that). We can both read everything the Framers wrote from grade school and on and still come to different conclusions. Cont'd.
If orginalism is about finding intent, I don't see how adhering to the meaning of the text as it applied to the time of its authorship is democratic. It seems that today's generation loses their voice to the voice of the past generation. We have the text right in front of us, we can read its words, and discern its meaning as it applies to our own time. I think we run into fallacies when we search for meaning that isn't fully available and applied to a different time.
Scalia does NOT "summon the consciousness of our founding fathers". Rather, he looks at the general public meaning of a phrase. Also, remember: Scalia's burden is NOT to prove originalism is perfect. His burden is to show it is better than any of the alternatives. Ps All the critics you have listed themselves have their critics, and their arguments might be better placed arguing against judicial review per se (i.e. all knowledge and practices are contingent), rather than originalism itself.
I am giving up my freedom of speech and country music writing and text'n to be a Constitutionalism constructioner an The Originalist Enlistee- and your on-call Restauteet
Moreover, you have not told me why JUDGES of all people are to tell us what the "text offers our eyes in today's world is foolish". Why not democratic debate, given the WIDELY differing views of "the text"? Does "equal protection" bar affirmative action? Require unisex toilets? Require woman serve on the front line? Protects smart animals like dolphins? This is where there is disagreement. I also noted below originalism does allow the text to be adopt for modern times: Kyllo; Saia etc
But that is not an argument against originalism but judicial review! As I said, if you want things to be up-to-date then adopt the Swiss system of government. Furthermore, EMPIRICALLY speaking, originalism does not get in the way of direct democracy compared to the 'living tree; - it leaves abortion, antidiscrimination laws, SSM, three strikes, assisted suicide, marijuana, religious matters etc to the initiative process, or legislatures.
So if you focus on 'ambiguous' language, there is no need for "alot of historical research" to determine whether the 14th Amendment included SSM; assisted suicide and the like. For new phenomenon, you argue by analogy (sound trucks cf. nuisance laws, or gun regul. cf. the tort of afrighting). I have yet to see an alternative theory of interpretation which reconciles a Democratic system of government on one hand, and the (self-imposed) countermajoritarian role of the court on the other
Ignorance of the "law" is no excuse for anyone but the lawmakers. If two lawyers and a judge cannot agree on what a law means, how are the great unwashed to understand it when bankrupted by paying for their own defense for "crimes against the state" with it's unlimited resources, stacked deck, malicious prosecution and crooked judges?
What, then, is the alternative? Judges thinking this ought to be the case and that ought to be the case? My point is originalism's virtues are (1) its democratic; (2) allows for diversity in a federal system and (3) most of the time it is clear what the framers' meant and where it isn't - originalism just says society has moved on - and defers to the people. Originalists scorn the Lochner era as much as they do the Warren court.
Okay. I think it is still more about seeming authoritative than anything; and I think it is disingeniuous to think that an interpreter can read from someone elses point of view without letting their own experiences and contexts overwhelm the majority of the interpretation. In Citizens United, he said that the Framers had in mind that as much speech as possible is good for democracy. Where does he get this? Democracy is about equal voice, not who can buy the most voice. May that be a caveat.
That's quite a cop out by you. This is about hermeneutic theory, not about what you have read. If you knew anything about semiology, you would know that there are signifiers, signifieds and referents. Originalism presumes that the signified stays the same always. When, in fact, the signified is always fluid and changing due to the social, technological, economical, political changes that influences the signifiers (us). Read Derrida; and you'll see that you don't know what you are saying.
I think it's pretty ignorant to think that Scalia can summon the consciousness of our founding fathers and know the intention of what they say, even though we can look back on something we wrote a few years ago and not undertand our own intention. Read a little Derrida, de Man, Roty, Zizek, Butler, among others? Even the philosophers on the Hegelian line of philosophy have to raise questions in light of deconstruction.
Rattapax that would be because unlike philosophers who are not bound by restraint in their wild prescriptions for mankind, the law IS, because it speaks for all people legally and enforceably, not just philosophically, TO WHICH THERE IS NO mechanism for HOLDING ACCOUNTABLE your (presented) philosophers and their opinions, BUT for what the law ACTUALLY AND EFFECTIVELY does to people; hence restraint is the default and not expansionary conceptions of justice, the way you were speaking of in exceptionally naïve way...
Ps again you are speaking of micro influences - private intentions do not feature in originalist analysis. The constitutions ideology is static insofar as it has a meaning which the majority at the time debated, argued, rebuffed or agreed too prior to ratification. If it is ambiguous, then it does involve research; but on most controversial issues its a piece of cake. Argumentum ad verecundiam (name dropping philosophers) does not prove which competing mode of interpretation is 'better'.
Bravo, Bravo Justice Scalia, I salute you for your dissent on Maryland v King, The Master Carpenter surely knows that thou hast truly hit the nail on the head with this dissent…! This is definitely a MUST view… Hoorah…Take 11 min. and listen to the best command of the english language to date: www.oyez.org/cases/2010-2019/2012/2012_11_207/opinion-2
The U.S. supreme court is not a body of ultimate legal authority in the U.S. court system. Its work in theory is to maintain that any law used in court meets a U.S. constitutional standard. The old constitution fails to apply to an evolving U.S. society. And historically the U.S Supreme court follows the politics of the day. It also follows the economics of the day. Many argue that the US supreme court is as outdated as the U.S Constitution itself. The US supreme court currently hears only about 7% of the writs submitted to it properly and with current valid law. That is no guarantee that a citizens civil and legal rights by law in the U.S. will be upheld. It is a lottery system. Ultimately ‘law’ is what ‘we the people’ say it is. As we see the U.S. fed courts bow to popular sentiment. As with ‘’same sex marriage’’ and a ‘’second language in the U.S.’’ popular does not mean the majority who are mostly silent. It means the stand up and protest people. Make it happen.
FEDERALIST #78 May 28th, MDCCLXXVIII Alexander Hamilton "....there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be smaller still who unite the requisite integrity with the requisite knowledge." Publius
Who are the judges to say that law applies the same way over different epochs, different conditions with new scientific development, new moral philosophies...? Sorry, but trying to find an alternative meaning than what the text offers our eyes in today's world is foolish. We can read the precedence, we can read the words, and we can better understand how law will apply today than a dead generation could have imagined. Ultimately, orginalism gives law a religious component, not a democratic one.
I had the pleasure of meeting Justice Scalia a few years ago. I do not share his legal philosophy, but he is a very impressive man. Obviously hugely intelligent, charming, unpompous and willing to engage in debate.
The same liberals who wish to unseat the constitution in the name of democracy…. Don’t believe in it because their rhetoric… to rule the masses is much much more important.
He was one of the most corrupt justices
Liked gifts, free travels, & free stuff like any other fake Republicans
One of the most brilliant legal minds in the history of the court. He also seems like a wonderful human being as well. I also adored his deep friendship with Ruth Bader Ginsburg.
"... well, I'm an American, but of Italian descent..."
- R.I.P. Justice Scalia -
America has suffered a monumental loss.
Italian also. como sti pisano.
RIP JUSTICE SCALIA
@Joe it's amazing how stupid you people are. Everything we know of Scalia tells us he'd find your bullshit comment absurd.
He wouldn't have been on your "team"
@Joe i loved scalia as a gay black man but gorsuck is a bae i cant help myself hes so hot ;)
@Joe Don't make this partisan, he states explicitly multiple times in this interview that his actions as a judge operated very differently from his own personal beliefs. He was a judge and not a party member.
What an amazing interview. It was exciting to se inside the mind of this great man, in a away his books don't completely allow for.
One of the most brilliant legal minds out there. Hopefully more judges turn out like him!
Fascinating interview. Gonna look for more from Judge Scalia.
A man who put emotions aside and followed the law as written! Very well spoken with a sense of humor.
👌👌
No Ulterior Motives. He went to Work and he Worked. He is a Good Soul
He was a brilliant jurist with great honor and integrity. A textualist. A constructionist. An originalist. A true follower of the Constitution.
He would bristle at being referred to as a "constructionist." He was not -- at least not a _strict_ constructionalist. One ought to start with reading the text of a law with a constructionist's eye; but if it's clear that such a narrow interpretation is not what was meant to the drafters the approach stops there. He preferred adhering to the _letter_ of the law as opposed to trying to divine the "spirit" of the law; but not to the point where words admit of no other interpretation beyond what the words say. He gave specific examples in this interview.
He was a genius pure and simple
What a supreme gentleman that served us Conservatives very well over the years.
He was the best when it came to the 4th Amendment and our right to privacy.
We were so lucky to have such a great man be a Justice on the Supreme Court.
Until he was murdered
Great man Great interview
God bless...RIP.
RIP great man!
+agua4health He's finally on his long way to hell; May he be damned for eternity.
@@martinpescador5642 speak for yourself.
I found the book fascinating. I've never been on a Law School Campus to the best of my knowledge.
48:50-49:20 Marvelous!
Put on smile on my face that Justice Scalia appeared almost offended by the interviewer identifying him as an
Italian American. He honestly loved his/our country.
This is how all United States citizens should identify ourselves; not African American, Asian American, European American, etc.
I'm an American, of _______ decent.
The interviewer said "and you're an Italian" not "Italian American". Scalia was surprised because what the interviewer said was not congruent with what Scalia was just talking about: "Italian law", that is, the law as it is in the nation of Italy. Scalia clarified that he is not "an Italian" in the sense of an Italian national. He has used Italian American elsewhere.
Ty
"Let every American, every lover of liberty, every well wisher to his posterity, swear by blood of the Revolution never to violate in the least particular the laws of the country; never to tolerate their violation by others. As the patriots of seventy-six did to support the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property and his scared honor.”
PRESIDENT ABRAHAM LINCOLN
(p.67-68; Camelot and the Cultural Revolution; JAMES PIERESON; Encounter Books; New York; 2007)
The very first question and his answer.
Hilarious!
One of the brilliant things about Justice Scalia was that his judicial philosophy caused him to view his colleagues in the highest regard (seeking to do good) instead of immediately jumping to a harmful, judgmental conclusion (judicial activism.) It was always a pleasure hearing his views of others that differed from his own. We need that nowadays.
Well, I don't think _any_ justice would have in mind to accede to the bench to do something sinister. The Warren Court, for example, was replete with erudite, well-educated and preeminently qualified lawyers, judges and jurists, who simply wanted to do justice to _the law._ They just happened to have a judicial philosophy that set the job of interpreting law on its head. If anyone has sinister intentions it's the President who nominates someone to the Supreme Court who they expect will do their bidding or will at least pander to the ideologues in whatever party they're in.
That's one thing people fail to understand about these justices is that they are colleagues, mutually respectful of each other, and devoted to the _law,_ and are _not_ just extensions of a political party's central committee or platform. I may embrace one judicial philosophy over another, but I don't look askance at any justice who earned their place on the bench as jurists who are devoted to the law, their profession, and their purpose. Leave that to the political hacks and rabid partisans.
Tonight I will toast to this great man.
+davo171 , me too. I toasted to his death. About time. Hopefully next is Thomas
huskerfaninNJ Sorry what's a Democrap? Never heard of one of those.
Tony Boy It's my name for Democrats, because I have ZERO respect for them. Get it?
huskerfaninNJ Oh OK. So you name call. I will assume you are still in grade school then. Let's chat when you're an adult and know how the world works, OK?
Tony Boy Yeah you really have the high ground here, don't you "Bud".
Toasting to a great man's death.
Stay classy.
Perhaps the greatest intellectual of his time and certainly one of the greatest of all time.
“What did you think when E.J. Dionne said you should resign?”
“Who?”
A perfectly cogent "answer."
Yes, and we should also have more voice than past generations.
Thank you🙏
He was a brilliant man
love him!!
"In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
Where an excess of power prevails, property of nom sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions."
"Where there is an excess of Liberty, the effect is the same tho' from an opposite cause.”
James Madison
(Property; National Gazette; March 29, 1792)
Impressed,God bless
FEDERALIST #62
James Madison
II. It is equally unnecessary to dilate on the appointment of senators BY THE STATE LEGISLATURES. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.
Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.
Publius
"BICAMERALISM OR FIGHT!", JUSTICE SCALIA; REPEAL THE 17TH AMENDMENT.
@@kirkbowyer3249 I have come to believe that this was the single worst change in law in our nation’s history, followed by the 16th amendment, because it enabled so many ill-advised decisions that followed.
Part 2. And because we would come to different conclusions, we are reading subjectively. All interpretation is subjective! In fact, in academia, studies show that when interpreters read for intent, they tend to leave the actual meanings of the words in front of them and find a meaning that is outside the text, and they have the widest degrees of differing interpretation. Which means the originalist hermeneutic is actually one of the most subjective modes.
Subjective,what one sa says, objective, open minded interpretation, assessing interpretation?,so what really is the meaning of the actual wording,and how its applied in sentence?
Completely roasted the host at the end.
The greatest supreme court justice and overall champion of liberty our republic has ever had
Brilliant!
55:30 Justice Scalia loses a bit of his famous logical rigor: when defending Citizens United "People are intelligent and can discern the truth from the false", but televising the Supreme Court proceedings would be bad because the American people would not watch gavel to gavel and ask stupid questions?
It would only be a diehard view that would watch from gavel to gavel. The rest would get their view of the court from non-contextual sound bites and video clips.
Why is the electric chair less cruel than hanging?
+chukchee I guess because hanging is older and seen as more barbaric.
hi, sorry to necro a 3 year old post, but it's less cruel because the electric chair kills the person instantaneously if the right voltage is applied. that responsibility goes to the people administering the electric chair, which were infamous for messing it up.
Yeah, I get that. My point is is that I don't think orginalism is, on the whole, possible. One can try and one can derive a great judgement now and then. I don't deny that. But it is a few steps away from believing in telepathy. When I was talking about micro/macro influences (by the way) I was talking about semantic changes and the economic environment that shapes our temperments and ideologies, which are different with every epoch. I don't know if we've reached an impasse but it was nice.
I really like his answer about his clerks....they could not debate him for sure.
Guiding principles.
Is that Amy Coney Barret at 33:17 ?
yes
No. It’s Jan Crawford Greenburg moderating the discussion. She was an ABC News legal correspondent at the time.
Well, collective intentional behaviour would fall within a Foucaultian analysis. But to build up that kind of reading takes a lot of historical research to do it accurately. Ideologies change, and the public has a tough time understanding different ideologies in their own time, let alone the understanding the macro and micro-logical influences constructing different ideologies of centuries ago. Personally, I would focus on ambigous and precise language and not make discisions far from precedence
Yeah, when he talked about cruel and unusual punishment, I agreed. And, I do at times like the argument by analogy, even though in Citizens United he took an analogy to reductio ad absurdum, and so goes the American Republic to oligarchy. I have read his essay, 'A Matter of Interpretation.' Ronald Dworkin wrote a 'Comment' that you should check out if you haven't already. I obviously agree with Professor Dworkin. Scalia also wrote a response to Dworkin.
Also, if haven't read structuralism (particularly Saussure's Course in General Linguistics), Derrida would be harder to understand. So check that out; it's pretty short. And if you have read Saussure already, then I guess Derrida will have to wait. But that reading should make Derrida more accessible. And although it's an oldie, "The Intentional Fallacy" by Wimslett and Beardsly is a good read. And Stanley Fish shows the affactive power of texts and how the reader completes its meaning.
“Government is instituted to protect private property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is just government which impartially secures too every man, whatever is his own.”
James Madison (Property; National Gazette, March 29, 1792)
I just copy what I see on TV (back when there were fancy people and royalty).
"Let me show you..."
He honored the Founders and the text of the Constitution. His death is a major loss to the United States.
R.I.P.
+Em Jay Enn, no one disrespected our constitution and the Founders more than him. May he now meet his maker and suffer the consequences of his horrific votes as a justice.
Tony Boy Your hysterical comment proves that you haven't read his decisions and you're uninformed on this subject. Go back to playing Farmville.
Em Jay Enn Like which one? Bush v. Gore? Division of Employment v. Smith?
Like any of them.
Em Jay Enn Oh yes, I am sure the Founders and Framers of the 14th Amendment totally had in mind "No state shall count the votes of the people during a presidential election when the Supreme Court doesn't like who might win." Sure that's what they totally thought.
You are correct about what he is burdened to do. But original point was his ignorance towards deconstruction, which if you have read, is deeply challenging to his hermeneutic theory. And as I noted, the philosophers of opposing schools still argue in light of deconstruction. Moreover, Scalia is not a literary critic; this isn't literature, it is law, it's a "living constitution," not the 10 Commandments. But originalism does have its moments, but not as a strict hermeneutic.
I confess; I read Derrida; I never got him. I like Rorty. I'd be interested what these "deeply" challenging points are against originalism are that do not apply to judicial review in general. John Searle sums it up well: 'there really is collective intentional behaviour as distinct from individual intentional behaviour. You can see this by watching a football team execute a pass play or hear it by listening to an orchestra'. All laws would be mysterious if they had no 'public' meaning.
Yes but he listen to him (and read him) he notes he argues by analogy. Hence, why we need judges: they ask does new phenomena Y (say the electric chair) have features X, Y and Z at the time of the framing? (it was adopted to be less painful than hanging, hence not unconstitutional). Where the debate is at is ex ante phenomena: the death penalty, abortion etc. Likewise, you use dictionaries to determine "arms" (and limits on the term we can use the tort of afrightening)
Scalia was so brilliant, i feel honored just to hear him speak. The guy conducting this interview reminds me of today’s fake news media.
That's because you're a partisan hack trying to masquerade as intelligent. Brian Lamb has done more to impartially educate the American public than almost anyone else over the last 50 years.
Scalia was indeed brilliant but not because he's on your "team". You're just too stupid to appreciate the nuance of his brilliance.
@@matthewomalley6732 Lol. You’re not going to persuade anyone of anything by calling them political hacks. I also think the interviewer did a good job. The interviewer simply doesn’t work in law and doesn’t understand some of the intricacies of it.
@@LegalAutomation I don't plan to convince anyone who calls Brian Lamb "fake news media" of anything. With that kind of political delusion it'd be a waste of my time
Too bad because he is one of only a few who actually pays attention to details and lifts up the critical layers to try and understand the wrong indirect effects of their decisions.
"The advice nearest my heart and deepest in my conviction is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise." James Madison
(Property; National Gazette, March 29, 1792)
People missed him true person are being intentionally vanished because of their wisdom and being greatness on the eyes of people..
You can change his hair, you can change clothes but when he starts writing and speaking you’re going to know that it’s unmistakably Justice Scalia!
32:40 I want to see the senate react to this with the current questions they’re asking nominee Jackson
“For man when perfected, is the best of all animals, but, when separated from law & justice, he is the worst all; since armed injustice is the more dangerous, and he is equipped at birth with arms, meant to be used by intelligence and excellence, which he may use for the worst ends. That is why, if he has not excellence, he’s the most unholy and the most savage of all animals, and the most full of lust and gluttony. But justice is the best bond of men in states; for the administration of justice, which is the determination of what is just, is the principle of order in a political society.”
Aristotle; Politics; Book I, Section 2.
Ignorance of the "law" is no excuse for anyone but the lawmakers. If two lawyers and a judge cannot agree on what a law means, how are the great unwashed to understand it when bankrupted by paying for their own defense for "crimes against the state" with it's unlimited resources, stacked deck, malicious prosecution and crooked judges?
We live in a world of 15 seconds take-out~ Fake News Foreign media destroying the USA. Just like the Nazi's take over News , Police, burning removal of status & bad medicine. Communist News Net .
"See generally, The Federalist Papers" is proving my point. Both of us will come to a different interpretations of The Federalist Papers and how we relate them to the Constitution. Where's the originalism? The interpreter's consciousness still dominates the understanding of the words, and it is naive to think that one could summon the vision of people who lived in a different time with a different economic and social reality. That's why originalism is just a way of seeming authoritative.
This man argues that the strict letter of the law shall not be absolute in the case about laying hands on a priest, but, not 3 minutes later, goes on to defend textualism as a strict reading of the letter of the law. What an abominable doctrine and an absolute fool of a man for, despite his intelligence, subscribing to it
You misunderstand. Scalia wasn't a textualist. He was an originalist: "The meaning the text had at the time it was written"
Details matter ... please be more careful.
54:40 Oh Antonin... People are idiots. That's why it should only be land owners that are allowed to vote. People who at least have vested interest in the country actually surviving, not just people (minorities) who want free stuff from the charity government.
I feel that word interpretation needs to be replaced with definition definitely.
no, that would be the opposite of what scalia was trying to achieve which was to come to a right conclusion through adamant discussion.
with many opinions from different minds ^
I thought the Congress and senate had a government seminar every weekday.
In the big questions - the death penalty, abortion, assisted suicide, SSM its a piece of cake. Taking power from the people and placing it instead with a judicial aristocracy can produce some creditable results that democracy might not achieve. The same can be said of monarchy and totalitarianism. But once a nation chooses democracy, with all its warts, the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is.
He argued that allowing Corporations to donate is a matter of free speech. The basis of our democracy, he said, is that people are smart enough. If they wanted to know who's paying for the commercials the information is out there. In other words, we shouldn't underestimate the people, we can trust their intelligence. The following question was about cameras in the Supreme Court. He's argument was basically, we can't trust people. All they will see is 15-30 second clips. Contradiction?
Balance of man
Who is the interviewer?
"BICAMERALISM OR FIGHT!" JUSTICE SCALIA
I didn't need to even hire voice actors.
Just gotta write for those who live with many people.
when did this aire?
he never did retire
I'd happily prefer the Dutch or Swiss system (i.e. no judicial review nationally); but when you have a constitution I still think originalism is superior. Dworkin has, in part, changed some of his mind since). In his reply, Scalia notes 99% of the time it is a piece of cake. Where you don't know or one is unclear, you defer to the people or the legislature. PS Even originalists are not originalists 100% of the time (hence, Scalia's disclaimer - not everything here I will apply in practice)
Only thing the supreme court can do is interrupt the laws, and the laws from a long time ago aren't that clear, but they are the laws. Because of the 10th amendment, congress can't make a law that forbids states to do something, so they'd have to pass an amendment that specifically protects the rights of what people do in the bedroom, which is very hard because 3/4ths of the states have to also agree to it, which will probably never happen with how divided the country is.
The letter of the law! Also, we know what they meant when they said dont put your hands on a priest. Not the letter of the law there!
Thinking that original intent if available to you or Scalia is subjective. It's all subjective at some level. Ever read about semiology? In academia, originalism is seen as one of the least objective hermeneutics. There is this theory called the 'intentional fallacy,' which is old, but the Deconstructionalist school took if further and is pretty solid theory today; a lot better than the telepathy Scalia seems to think he has.
9:52 every AP US History student read every federalist paper. I highly doubt the majority of law students haven't read them.
Reading the federalist papers and being a modern conservative feels hypocritical
lol no one in my AP American history class read them
"Why now?" What a dumb opening question.
RIP
As I said, not all people who claim to be originalists are originalists and your arguments are against judicial review itself (i.e. personal preference overwhelm an opinion), not against originalism per se. On the big issues - Thornton v Arkansas; Romer v Evans; Gonzales v. Raich; Lucas; Jordan v Silver etc etc - originalists defer to the people. Same with the Establishment Clause; had originalism dominated in the 1960s most laws by the people would have been upheld.
Federalist #10
James Madison; Daily Advertiser; Thursday, November 22rd, 1787.
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of the other citizens, or to the permanent and aggregate interests of the community.”
Publius
It is democratic because under an originalist methodology cases like Romer v Evans, Reitman, Perry, Plyer v Doe etc would be upheld. Does equal protection ban affirmative action? Similarly, who the hell are judges to tell us what "applies to our time"? I thought we had ballot initiatives and legislatures to do that for us. If the meaning is not fully available an originalist can concede "I am not satisfied this meaning is accurate beyond reasonable doubt" and let the democratic choice prevail.
I'm not just name dropping philosophers. If you listen to Scalia, he says phrases like, "I don't think the Framers had in mind automatic rifles when they wrote the second amendment." He has no idea what the Framers had in mind, but in the second there is an ambiguous word, "arms," which could mean anything. By saying stuff like that (which he recently did) he is merely trying to make his interpretation sound authoritative. For precise language, the realm of interpretation is limited anyway.
You are not getting what I'm saying because it has more to do with linguistics and how we actually read than The Federalist Papers. You are essentially asking me to read in a Foucaudian mode by filling in historical context, which actually takes historical scholarship to do it accurately (and Scalia doesn't believe that). We can both read everything the Framers wrote from grade school and on and still come to different conclusions. Cont'd.
If orginalism is about finding intent, I don't see how adhering to the meaning of the text as it applied to the time of its authorship is democratic. It seems that today's generation loses their voice to the voice of the past generation. We have the text right in front of us, we can read its words, and discern its meaning as it applies to our own time. I think we run into fallacies when we search for meaning that isn't fully available and applied to a different time.
Watching this for class... GWC :(
Scalia does NOT "summon the consciousness of our founding fathers". Rather, he looks at the general public meaning of a phrase. Also, remember: Scalia's burden is NOT to prove originalism is perfect. His burden is to show it is better than any of the alternatives. Ps All the critics you have listed themselves have their critics, and their arguments might be better placed arguing against judicial review per se (i.e. all knowledge and practices are contingent), rather than originalism itself.
59:06 Well... _that_ didn't go as planned...
well... Obama ordered his CIA to kill him.
I am giving up my freedom of speech and country music writing and text'n to be a Constitutionalism constructioner an The Originalist Enlistee- and your on-call Restauteet
Moreover, you have not told me why JUDGES of all people are to tell us what the "text offers our eyes in today's world is foolish". Why not democratic debate, given the WIDELY differing views of "the text"? Does "equal protection" bar affirmative action? Require unisex toilets? Require woman serve on the front line? Protects smart animals like dolphins? This is where there is disagreement. I also noted below originalism does allow the text to be adopt for modern times: Kyllo; Saia etc
Press[ure]?
[Teacher_of_][pique-ing_topics]?
But that is not an argument against originalism but judicial review! As I said, if you want things to be up-to-date then adopt the Swiss system of government. Furthermore, EMPIRICALLY speaking, originalism does not get in the way of direct democracy compared to the 'living tree; - it leaves abortion, antidiscrimination laws, SSM, three strikes, assisted suicide, marijuana, religious matters etc to the initiative process, or legislatures.
So if you focus on 'ambiguous' language, there is no need for "alot of historical research" to determine whether the 14th Amendment included SSM; assisted suicide and the like. For new phenomenon, you argue by analogy (sound trucks cf. nuisance laws, or gun regul. cf. the tort of afrighting). I have yet to see an alternative theory of interpretation which reconciles a Democratic system of government on one hand, and the (self-imposed) countermajoritarian role of the court on the other
Ignorance of the "law" is no excuse for anyone but the lawmakers. If two lawyers and a judge cannot agree on what a law means, how are the great unwashed to understand it when bankrupted by paying for their own defense for "crimes against the state" with it's unlimited resources, stacked deck, malicious prosecution and crooked judges?
It's better to teach while typing opinions.
Because it's not enough to be so vague (in my opinion).
What, then, is the alternative? Judges thinking this ought to be the case and that ought to be the case? My point is originalism's virtues are (1) its democratic; (2) allows for diversity in a federal system and (3) most of the time it is clear what the framers' meant and where it isn't - originalism just says society has moved on - and defers to the people. Originalists scorn the Lochner era as much as they do the Warren court.
Okay. I think it is still more about seeming authoritative than anything; and I think it is disingeniuous to think that an interpreter can read from someone elses point of view without letting their own experiences and contexts overwhelm the majority of the interpretation. In Citizens United, he said that the Framers had in mind that as much speech as possible is good for democracy. Where does he get this? Democracy is about equal voice, not who can buy the most voice. May that be a caveat.
That's quite a cop out by you. This is about hermeneutic theory, not about what you have read. If you knew anything about semiology, you would know that there are signifiers, signifieds and referents. Originalism presumes that the signified stays the same always. When, in fact, the signified is always fluid and changing due to the social, technological, economical, political changes that influences the signifiers (us). Read Derrida; and you'll see that you don't know what you are saying.
I think it's pretty ignorant to think that Scalia can summon the consciousness of our founding fathers and know the intention of what they say, even though we can look back on something we wrote a few years ago and not undertand our own intention. Read a little Derrida, de Man, Roty, Zizek, Butler, among others? Even the philosophers on the Hegelian line of philosophy have to raise questions in light of deconstruction.
Rattapax that would be because unlike philosophers who are not bound by restraint in their wild prescriptions for mankind, the law IS,
because it speaks for all people legally and enforceably, not just philosophically, TO WHICH THERE IS NO mechanism for HOLDING ACCOUNTABLE your (presented) philosophers and their opinions,
BUT for what the law ACTUALLY AND EFFECTIVELY does to people;
hence restraint is the default and not expansionary conceptions of justice, the way you were speaking of in exceptionally naïve way...
Ps again you are speaking of micro influences - private intentions do not feature in originalist analysis. The constitutions ideology is static insofar as it has a meaning which the majority at the time debated, argued, rebuffed or agreed too prior to ratification. If it is ambiguous, then it does involve research; but on most controversial issues its a piece of cake. Argumentum ad verecundiam (name dropping philosophers) does not prove which competing mode of interpretation is 'better'.
Bravo, Bravo Justice Scalia, I salute you for your dissent on Maryland v King, The Master Carpenter surely knows that thou hast truly hit the nail on the head with this dissent…! This is definitely a MUST view… Hoorah…Take 11 min. and listen to the best command of the english language to date: www.oyez.org/cases/2010-2019/2012/2012_11_207/opinion-2
+Richard Howarth How about his landmark opinion that satan is a real person?
The U.S. supreme court is not a body of ultimate legal authority in the U.S. court system. Its work in theory is to maintain that any law used in court meets a U.S. constitutional standard. The old constitution fails to apply to an evolving U.S. society. And historically the U.S Supreme court follows the politics of the day. It also follows the economics of the day.
Many argue that the US supreme court is as outdated as the U.S Constitution itself.
The US supreme court currently hears only about 7% of the writs submitted to it properly and with current valid law. That is no guarantee that a citizens civil and legal rights by law in the U.S. will be upheld.
It is a lottery system.
Ultimately ‘law’ is what ‘we the people’ say it is.
As we see the U.S. fed courts bow to popular sentiment. As with ‘’same sex marriage’’ and a ‘’second language in the U.S.’’ popular does not mean the majority who are mostly silent.
It means the stand up and protest people. Make it happen.
FEDERALIST #78
May 28th, MDCCLXXVIII
Alexander Hamilton
"....there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be smaller still who unite the requisite integrity with the requisite knowledge."
Publius
Who are the judges to say that law applies the same way over different epochs, different conditions with new scientific development, new moral philosophies...? Sorry, but trying to find an alternative meaning than what the text offers our eyes in today's world is foolish. We can read the precedence, we can read the words, and we can better understand how law will apply today than a dead generation could have imagined. Ultimately, orginalism gives law a religious component, not a democratic one.