Layman

I have done all I can to remedy that problem.

Because I read what was written. Because I have studied Scalia's legal opinions. Because I have read his book and articles he has written. Because I have heard him give speeches. Because I have met him and talked about these very same legal issues.

What do you mean? Scalia is offering an opinion. The opinion that this is a legislative issue, not a judicial one. What does anyone's opinion have to do with anything? It's just an opinion.

Philosoft

Thanks for trying.
Fair enough. So I guess "such decisions" means "anything short of an establishment of a national religion"?
I guess I don't understand why he thinks this. It appears that his ideas of what is judicially reviewable are somewhat capricious.

hezekiah jones

Perhaps. All I have to go on is the newspaper report at the moment.

I don't know. My point was in reply to ftr, in that short of amending the Constitution, Congress often rewrites overturned legislation, and I gave an example. Sometimes the Court, in overturning legislation, practically gives lawmakers directions on how to rewrite laws, like in Washington v. Glucksberg, the assisted suicide case, in order for them to pass Constitutional muster. I wasn't talking about Scalia specifically; just making a general comment.

Eh? What Scalia said was that Newdow contained "some plausible support," so he at least believes that the addition of "under God" was potentially a violation of the establishment clause. Anyway my remark above was in response to my own admittedly rhetorical question. Besides, if Scalia really is saying that people that "get worked up over" potential violations of the Constitution should deliver their dyspepsia to the legislature, what the hell is he doing sitting on the Supreme Court? Shirking? And why did Scalia feel compelled to write a dissent to the fact that the Court refused cert in Freiler v. Tangipahoa? So the litigants could "take it to the legislature"? I think not.

How come you're allowed to interpret Scalia's remarks but I am "misinterpreting" them? My point here, and you are also well aware of it from first semester law school, is that Supreme Court decisions represent both primary and mandatory authority to the lower courts, and they are compelled to follow both. Most of the critics of Newdow either never mentioned or were possibly unaware of this fact.

Anyway there is nothing wrong with you or Scalia sharing a distinctly minority view with respect to establishment clause jurisprudence. Hopefully Bush will get to set things straight with a few more hand-picked ideologues like the "strict constructionist" Scalia (so long as nobody tells Bush that Scalia himself wrote that strict constructionism is "a degraded doctrine").

fromtheright

hezekiah,

Scalia didn't write an opinion in Texas v. Johnson did he?

Double check me, as I will myself, but I think he wrote the opinion for the court.

Thinking back on Employment Division v. Smith, I don't think my problem was with the Court but with some conservative Christian opposition, claiming that it was dangerous precedent. I still need to go back and read the opinion again, but I don't remember much problem with it. Some of the opposition was along the same lines as those who object to employers not allowing employees to wear religious message T-shirts. My view is that if it is a condition of employment that was a condition when someone took the job, that person knew the requirements going in and "tough titty said the kitty". I don't think there is any free speech or free exercise issue involved as it involves private actions. I think the same would apply to government employees, though. My only objection would be if such rule were not applied consistently but I still don't think there would be a free exercise argument, only perhaps a discrimination one.

(Yes, did read Slouching Toward Gomorrhah and remember being amused by the passage you noted. I do believe him, though, that he is probably really not a porno-hound.)

If I may pipe in on Layman's interpretation of Scalia re Newdow I think he makes perfect sense if you assume, even for argument's sake, that Scalia is correct, that the pledge wording is constitutional, in which case, yes, let those who object take it to the Legislature. I don't though (and perhaps Layman will agree) think it illegitimate to bring the issue before the courts (and it seems to me that Scalia agrees with this, in his "some plausible support" comment), though I don't think they should find it unconstitutional.

Hopefully Bush will get to set things straight with a few more hand-picked ideologues like...Scalia

Nothing would warm this right wing ideologue's heart more. If for no other reason than my own pleasure in watching the paroxysms of rage it would inspire in this forum.

Philosoft

Maybe you can help. What does Scalia mean when he says this, "However, the justice said he believes such decisions should be made legislatively, not by courts"? Does he simply mean, "The 9th Circuit's ruling that the phrase "under God" is unconstitutional is wrong"? Because if he does, he phrased it oddly. Oddly enough that it appears what he is saying is that the court shouldn't hear cases like that one* at all.

{*subject to Scalia's arbitrary definition of "cases like that one"}

Stephen Maturin

FTR,

Scalia voted with the majority in that case, but didn't write any of the opinions. See Texas v. Johnson, 491 U.S. 397 (1989).

As I recall, Christians of all political persuasions had problems with the decision. A Catholic law professor and constitutional law scholar I know was outraged. He suggested a "test case" aimed at getting Smith overruled: having a fire marshall shut down a Catholic mass and arrest the priest for violating a local "open flame" ordinance.

hezekiah jones

Originally posted by fromtheright:
"Double check me, as I will myself, but I think he wrote the opinion [in Texas v. Johnson] for the court."

Brennan (C.J. at the time) wrote the majority opinion in which Blackmun, Kennedy, Marshall, and Scalia joined; Kennedy wrote a concurring opinion; Rehnquist wrote a dissenting opinion, in which White and O'Connor joined; and Stevens wrote a separate dissenting opinion.

Originally posted by fromtheright:
"My view is that if it is a condition of employment that was a condition when someone took the job, that person knew the requirements going in and 'tough titty said the kitty.'"

Generally speaking, I agree; but the case had to do with the fired employees being denied state unemployment benefits based on the circumstances of their dismissal.

Originally posted by fromtheright:
"Nothing would warm this right wing ideologue's heart more. If for no other reason than my own pleasure in watching the paroxysms of rage it would inspire in this forum."

We don't do paroxysms of rage. We do impeccably reasoned, well-researched objections based on precedent fully supported by the appropriate citations.

Stephen Maturin

Whaddaya mean "we," white man? I for one would be utterly lost without my paroxysms of rage.

Rusting Car Bumper

That is not really the issue of the case.

The case has to do with the public school (i.e. the state by proxy) requiring kids to either say the pledge or do nothing. That is, require kids to express pledge with a single theological sentiment or do nothing. Thus, the only pledge is one which forwards a preferred theological position.

DC

fromtheright

hezekiah and Stephen,

Thanks for correcting me on Texas v. Johnson . I'm a longtime sufferer of CRS.


Philosoft,

Maybe you can help. What does Scalia mean when he says this, "However, the justice said he believes such decisions should be made legislatively, not by courts"? Does he simply mean, "The 9th Circuit's ruling that the phrase "under God" is unconstitutional is wrong"? Because if he does, he phrased it oddly. Oddly enough that it appears what he is saying is that the court shouldn't hear cases like that one* at all.

Well, I started to say that giving him the benefit of the doubt perhaps he meant that the legislature should be deciding such issues one way or the other, but I apparently missed someone's earlier reference to the statement you quoted, that the Court should not hear such cases.


Also, Digital Chicken, I would disagree with your assessment of the Newdow case, I don't think the issue was a requirement to do anything and as I recall Newdow specifically said that was not the issue, which has already been decided. His claim was for injunctive relief due to the injury caused his daughter in hearing the pledge with "under God" in it:

For the point you were making, however, as to Scalia's disagreement, my correction above is probably beside the point.