penumbra

from the article:
"That is contrary to our whole tradition, to `in God we trust' on the coins, to (presidential) Thanksgiving proclamations, to (congressional) chaplains, to tax exemption for places of worship, which has always existed in America."

I am growing so weary of hearing the nonsensical "tradition" argument. Just because something is/was "traditional" does not make it right or proper or justified or reasonable. Wasn't slavery traditional once? And women as chattel?
Why can't these people argue an issue on it's own merits rather than resorting to "because we've always done it that way"????

CALDONIA

Amazing. I suppose Scalia objects to a Constitution that "morphs" to the extent of granting the right to vote to women and granting equal rights to all citizens? Maybe the Constitution that rubber-stamps the doctrine of slavery is OK by him?

The Constitution does not deny all religious expression in 'public life,' it prohibits the State from favoring or encouraging any act or inference that might tend to establish a State religion. Scalia ought to know that the "In God We Trust" on our money is fairly recent, and that Thanksgiving was a secular holiday that came from Abraham Lincoln in homage to the sacrifices made during the Civil War.

Think of the competition among all the religions to compete for the recognized Religion of the United States of America! Maybe a TV series, wherein certain representatives of their respective faiths could compete in singing, debates, juggling, miracles, and talking to the dead, would provide endless entertainment and untold advertising revenue for the networks.

What would Darwin do?

fromtheright

hezekiah,

As you might guess, I am rather a fan of Scalia, but it's also been awhile since I've looked at the decisions following Employment Div. v. Smith , and as I recall I had some problems with it. As a critic, though, do you find anything redeeming in his opinions, e.g., Texas v. Johnson (?--the flag burning decision of several years ago)?


I probably need to go back and read Newdow anyway.

Layman

I did not ask him when I met him, but I suspect Scalia is a fan of the adoption of the 19th Amendment.

I am sure Scalia is also a fan of the adoption of the 14th Amendment.

I am very confident that Scalia is a fan of the adoption 13th, 14th, and 15th Amendments.

In other words, what makes you think that Scalia objects to the "morphing" of the Constitution by the 13th, 14th, 15th, and 15th Amendments?

Layman

Perhaps that is because you missinterpret his remarks.

How did Scalia vote on that one?

Or RIFRA? Scalia voted to find that pro-religion piece of legislation unconstitutional.

Scalia never said anything of the sort. What he is saying is that it is not unconstitutional to have "under God" in the Pledge, so that people who get worked up over it should take their arguments to the legislature.

I think Scalia is saying that Supreme Court precedent has been heading in in this direction, although it had not reached that level yet. What's wrong with that? I think he's right about that, although I think the trend of the Supreme Court is not based on a proper interpretation of the Establishment Clause.

Last time we chatted he seemed fine.

Layman

No, he thinks that because there is nothing unconstitutional about the "under God" part of the Pledge, that it's a decision left to the legislature.

Philosoft

This does not make sense.
What does Scalia mean when he says "such decisions"? Presumably, it does not mean "determination whether an act of Congress is or is not constitutional." Are you saying it means "a legislative issue which I (Scalia) have already decided is constitutional?" Something's fishy. Had the 9th Circuit rejected Newdow's suit, I suppose Scalia would be praising their decision. So it's just the way the ruling went that prompted Scalia's comment?

hezekiah jones

Originally posted by fromtheright:
"As you might guess, I am rather a fan of Scalia, but it's also been awhile since I've looked at the decisions following Employment Div. v. Smith , and as I recall I had some problems with it. As a critic, though, do you find anything redeeming in his opinions, e.g., Texas v. Johnson (?--the flag burning decision of several years ago)?"

So am I a fan, but from a different perspective. He's definitely the funniest guy on the Court, and one of its finest writers.

Employment Div.v. Smith ... interesting free exercise case. I didn't really understand it until I did a couple of peyote buttons and meditated upon Scalia's opinion under a cactus plant in the middle of the Mojave Desert.

I guess this is the right decision, although I disgree with the law making ingesting peyote illegal, and I think that the respondents generally got a raw deal. But I think Scalia is being pretty consistent here, in that he's respecting the state's right to ban a particular substance, so long as that ban is not specifically directed at its use for religious purposes, which appears to be the case here. Also he apparently correctly notes that the Court has never upheld these sorts of challenges, unless the case involved a "hybrid" question containing both the protection of free exercise and another enumerated right. So although justice may not have necessarily been served, constitutionality probably was, at least according to Scalia's view of government functions. I also agree with one point made in the dissent; like I said, I don't find Oregon's ban on peyote a particularly "compelling government interest." But if you accept that it is, then Scalia is correct.

Scalia didn't write an opinion in Texas v. Johnson did he? I think one of the remarkable things about that case was the split in the Court, with Scalia siding with Brennan and Marshall, and Stevens dissenting along with White and Rehnquist (although in separate opinions). I completely agree with this decision. I see little doubt that flag burning is political speech, and if anything is protected by the First Amendment, it's political speech, even Robert Bork would agree with that. (Have you ever read that bit in Slouching Toward Gomorrah where Bork, alone in a hotel room, finds himself "transfixed" by the wide range of smut available on the cable TV, but he claims to be transfixed "purely for sociological purposes" or something like that? It's pretty comical, except I don't think it was intended to be.)

Anyway I wouldn't call myself a "critic" of Scalia. I simply don't have the credentials to do so. The first opinion of Scalia's that I ever read was his dissent in Edwards v. Aguillard, which incorporates one of the most ridiculous "arguments" I have ever seen in my life. Although it isn't Scalia's own "argument" (it belonged to the sponsor of Louisiana's Balanced Treatment Act) the fact that he even included it in his dissent made me extremely suspicious of Scalia's grasp of reality, especially when it comes to the establishment clause vs. creationism. Since then I've always been suspicious of Scalia's establishment clause opinions. And you've got to admit, the guy tends to get pretty worked up over the issue sometimes, which is, of course, part of his "charm."

Layman

Nice, short, declarative statement. What do you mean? It seems perfectly logical. If something is not unconstitutional, it is up to the legislature to determine whether to pass it or not.

Presumably decisions regarding pronouncements such as Days of Thanksgiving/Prayer, and pronouncements of a national motto, and including "under God" in the Pledge.

Of course Scalia does not believe that Congress is the last word on whether something is constitutional or not. He believes in the Doctrine of Judicial Review and has exercised it many times.


Not really.

Yes, Scalia obviously thinks it was erroneously decided. You can disagree with him. But that does not make it "fishy."

Philosoft

I mean I don't remotely understand the scope of the phrase "such decisions."
Well, thanks, but how do you know what he means by "such decisions"?
I'm sorry. Why, again, does Scalia's personal opinion of the correctness of the decision have anything to do with the scope of issues the court should address?