Who was Antonin Scalia and Why Should We Care?

In the immediate aftermath of the late Supreme Court Justice Antonin Scalia’s death, the mass media often mentioned a quirky little detail of his life–that he was a member of a secretive, little-known group known as the Society of St. Hubertus.  The Society celebrates hunting as an activity, and has its symbols and its rituals; these are said to include green robes emblazoned with a large cross with a superimposed Latin legend that translates to “Honoring God by Honoring His Creatures.”

Like many of these “gentry” organizations, this one had its origin in Europe, and is open to a select, males-only group.  Much as I find this sort of thing vaguely funny (Robes?  For hunters?  And “boxed bird” hunts, where rich men go in pursuit of pheasants or other game birds placed conveniently where they will pass?), hunting is not what this sort of thing is really about.  It is a way that the movers and shakers of society get together, out of the spotlight, to decide how to run the world.

Scalia went on a hunt with then vice-president Dick Cheney a few years ago, before a case involving Cheney and his “need for secrecy” in the case of a government interagency energy task force came before the Supreme Court.  Scalia did not recuse himself from the case and I’ll just bet it never came up (Heh, heh…) during the hours in the field.  The Court sided with Cheney’s claim to secrecy.  Would it have done the same had Cheney never had his private hunt with Scalia?  I can’t say.  Neither can anyone else.  But without slipping into conspiracy theories, I can say it at least can give the appearance of impropriety.

Let’s go a bit deeper into the weeds.  Let’s say Scalia was a man of serious and deep convictions in many matters, because he was.  Some of these matters were matters of government, and I would say, along with millions of other Americans, that others were matters of religion.  We take the separation of church and state more or less for granted in this country, don’t we?  But what if someone like Scalia or someone in a similar position did not?  As has often been pointed out, the separation doctrine does not appear, in those words, either in the Declaration of Independence or the Constitution.  There are plenty of writings by Jefferson and others of the Founders that point to it, but that is the extent of it.  There is, perhaps now more than at any other time, a good amount of overt and covert attempt to inject religion into the public arena.  More than one presidential candidate has suggested that there is or should be a tacit religious test for the presidency.

You can now be excused  if you are wondering what this all has to do with Antonin Scalia and his term on the Supreme Court.  Only that Scalia has been widely described as possibly or probably a member of Opus Dei, the secretive (much more than any hunting club) Roman Catholic organization.  This is not the Knights of Columbus.  Opus Dei means “The Work of God.”  The details of its founding by a Spanish priest in the 1920’s are widely available.  Its (open) aim is to “re-establish Christian ideals in modern Society,” as per the Oxford English Dictionary.

That definition establishes two central tenets without saying so.  One is implicit: if something is to be re-established, then (a) it was established at some time in the past, but (b) it has fallen away.  The second is always implicit in anything involving the Roman Catholic church: “Christian ideals” are as “we” (the church, with its voice residing in Rome) define them.  Dissent is not welcomed.  Traditional Christian ideals would be seen as synonymous with traditional Roman Catholic ideals by members of Opus Dei.

When a hot-button issue came to the court during Scalia’s tenure, his was a sure vote for the “good old days.”  Abortion?  The more restrictions, the merrier, for Scalia.  Breaking with tradition was almost always wrong.  In his written opinions and his public speeches, he underlined that position, defending the execution of minors and discrimination against gay citizens.  In 2002, asked why he favored legal sanctions against homosexual behavior, he replied, “It’s been illegal for 200 years in every state.”

Antonin Scalia was apparently a true believer in his personal life and in his public and private speech and thought.  The trouble with that is that it is absolutely irrelevant to his duties as a Supreme Court justice, just as it would be if Judge So-and-so were a “good Jew” or a “good Mormon” or you name it.  Religion, as practiced by one group or another, does not shape equality of citizens under the law, or other sensitive workings of the Constitution, and naming another justice with similar proclivities would continue the encroachment of religion into constitutional law.

This, at its heart, is why the current edition of the Republican-controlled Senate is having its extended tantrum over President Obama’s naming of a more centrist judge to Scalia’s seat.  They have grown used to relying on that ultra-traditionalist vote when anything comes before the Court that might threaten the grip of the so-called “Christian Right” on the political life of the country.  While this cabal of self-righteous, ultra-capitalists whines about a “war on Christianity” or whatever they choose to call the threat of the moment, their lawyers work backward from the desired conclusion to build a justification for it.  During Scalia’s term, an appeal to “how it’s always been” was a sure way to get him (and usually his disciples, Clarence Thomas and Samuel Alito) on board.

Am I now so old that I remember so many things that used to be, but never should be again? Voting restrictions in many states that ensured that African Americans never voted?  The legal exclusion of women from voting?  Compulsory-for-all prayers and even religious education in public schools?  There are other examples, but I digress.

I have now done two blog posts touching on the Constitution of the United States.  It is, indeed, a deathless document, but it was written at the time of an infant country of 13 states huddled on the Eastern seaboard, pre-industrial, agrarian, and hard by a dangerous frontier.  More than 200 years later, we are a mighty nation that has grown strong, resilient, and, above all, adaptable.  Things came to exist and things ceased to exist during those 200 years, but the Framers’ document has survived and is a model to the world, and just as adaptable as the nation and as the government it established .  I, for one, hope another Scalia is not Court-bound.  His intelligence, wit, and writing skills deserve the praise they are getting.  His narrow-mindedness and condescension for those who disagreed with him are not going to be missed.

“Originalism” and the U.S. Constitution

The late Supreme Court Justice Antonin Scalia was insistent that he was an advocate of something he called “originalism” in reference to the interpretation of the U.S. Constitution.  The term can be slippery: it seems to be as open to individual interpretation as many of the cases that come before the court.  In the broadest possible terms, it is said to be a standard for interpretation of the Constitution by attempting to understand clearly what the words of the Constitution meant to the Founding Fathers at the moment they put them to paper in the document.  Scalia, in particular, expounded his view (as quoted in Wikipedia–hey, I’m not writing a legal treatise here) that

“If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the Constitution had some secret meaning in mind when they adopted its words.  I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”  (Scalia’s own words, from a speech at the Catholic University of America in 1996.  See the Wikipedia article on Originalism, footnote 21.)

I am no legal scholar.  I am not even a lawyer, and in truth, I’m going to take a Scalia-like stand and say that I don’t care whether I persuade you of what I’m about to say or not, but it seems to me (and you are as always free to disagree with whatever vehemence you choose) that this method fails in many cases to take into account the evolution of basic human rights and the evolution of the United States itself.  The originalist, textualist arbiter is locked into the “original” meaning of the words–no matter that there is room for disagreement between two such interpreters or among all nine Justices of the Supreme Court.

A couple of glaring examples of how the Constitution did, in fact, evolve are illustrative.  The original text of the Constitution recognizes slavery as a fact, and even lays out that each slave in a particular state shall count as 3/5 of a “person” for the purposes of apportioning members of Congress–even though those slaves were not accorded the right to vote by the original text.  Thus a free white man voting in Virginia had far more clout than one voting in Massachusetts, who was voting only for himself, and not any number of census-inflating, but non-voting slaves.  All women were completely disenfranchised.

Slavery in the United States became unconstitutional (thus, illegal) with the ratification of the 13th Amendment in 1865.  Then, as now, ratification required the assent of 3/4 of state legislatures; the 13th took effect once this number was achieved, with several other states following in subsequent sessions.  Interestingly, Kentucky did not ratify on first consideration; it rejected ratification, though it did fall into line– in 1976(!)  Mississippi has never ratified it to this day.

The 15th Amendment prohibited the denial of the right to vote to any person on the basis of color or previous condition of servitude (in other words, states were no longer allowed to bar voting based on race or by restricting the rights of former slaves).  The amendment went into effect upon ratification by the required number of states in 1870, but a few states were slow to ratify (Delaware, 1901; Oregon, 1959; California, 1959; Maryland, 1973; and Kentucky, again, in 1976.  Tennessee never did ratify this one.

The 19th Amendment finally got around to giving women the right to vote.  Many citizens would be surprised to know that this amendment’s ratification finally took effect only in 1920.  No state failed to ratify, but late ratifications from 1952 to 1984 (yes, 1984) included Virginia, Alabama, Florida, South Carolina, Georgia, Louisiana, North Carolina, and Mississippi, with Mississippi again bringing up the rear as the 1984 ratification.

If I were to hold originalists to a strict, rigid standard for these obvious failings in “original intent” as laid out in the wording of the original Constitution, they would probably reply, as Scalia often did, that these were remedies that took place through legislative (i.e., political, rather than judicial) processes, and that such processes were recognized and laid out in the original content of the original document.  In the narrowest sense, this is 100% true, but that leaves open the question of whether the institutionalized injustices in the original document were just oversights, which came to light later and were corrected in a timely fashion.  You might even agree.  I don’t.

It appears evident that even the Founding Fathers were hamstrung in some instances by politics, and that they made compromises (Who knows how willingly?) in order to get agreement and support from each other.  In some instances–the quartering of soldiers without the assent of the property owner, the prohibition was absolute, English common law precedents be damned.  In others, as shown above, an enlightened, “justice for all” approach would not have carried the support of many of the representatives of the states that depended on slavery for their economies.  (Virginia, was, at the time, one of the largest and most prosperous states as well as home to thousands of slaves, whose labor supported large plantations of tobacco or cotton.)  Women were basically, in a legal sense, property at the time of the original Constitution, and the document the Founding Fathers produced reflected that status.  The cited provisions of the original framework were, to be sure, eventually corrected to more enlightened ones, but what comfort is that to thousands who never were “given” the rights we all take for granted today?

The “originalist” position serves as a starting point, to be sure.  It enumerates certain rights to be reserved for individuals, others for states, and others for the only government that represents all of the above, the federal government.  But, as we often heard in the 20th century, “states’ rights” was often little more than a smokescreen for withholding individual rights from some.  No interpretation of the Constitution should be allowed to perpetuate that.  Today we see several states trying to suppress the rights of some to vote, a continuation of restrictions that transparently disenfranchise some so that others could continue to shape their states’ laws to reinforce their own hold on power.

I have wandered far from my starting point, but Justice Scalia will be the subject of another post, soon.  I think, as I am sure many others do, that his expressed philosophy on many controversies served his own philosophical/religious leanings, not the Constitution or the people of the United States.  More later.

 

Predictions: March 15 Presidential Primary voting (UPDATED March 16)

I am not up on the latest polls.  I really don’t know who is “favored” to win the Presidential primaries whose results we’ll be seeing on TV in just a half hour or so.  This will be one of the shortest blog posts ever, since I want to go on record before it all becomes yesterday’s news.

So, deep breath, here goes, and feel free to criticize me tomorrow if I’m way off.

ILLINOIS

Republicans: Trump, by a good margin.  I expect him to exceed 40% here, as Cruz continues to poll at a fair rate, and Rubio does step 35 in his long vanishing act.

Democrats: Going out on a limb here–Sanders, ever so slightly. as more people wake up and realize he is neither a TV personality nor a “normal” politician, and Illinois moves Michiganward.  Otherwise, Clinton ekes out another tremendous near tie.

UPDATE 3/16:  Well.  Got the Republican side right, (Duh, who didn’t?) but the narrow Sanders win I expected here did not happen.  There are plenty of possible explanations (HRC’s “home” state, stronger organization, etc.) but, all in all, she is the favored candidate, and the upset I was looking for just did not come through.  On the other hand, the latest count I saw says Clinton won 66 delegates here, while Sanders took 64, so the “Clinton near tie” scenario I alluded to above was the result, with a popular vote margin of less than 2%.

MISSOURI

Republicans: Trump again, with Cruz close behind.  Rubio shouting from far in the rear.  Missouri has more in common with Arkansas than most of us realize.

Democrats: Clinton, fairly comfortably.  See the “Arkansas” reference above.

UPDATE, 3/16: I got both winners here, but the commentary was off a bit.  Trump-Cruz came in pretty much exactly as I had called, but on the “D” side, in a large shock to me, Sanders came within a whisker of overtaking Hillary.  Cold comfort for Sanders supporters, since this follows Massachusetts and Iowa as “close, but no cigar” states.  I have yet to see a final delegate apportionment, but it is likely to be a near-even split again.

OHIO

Republicans: Kasich in a squeaker.  Trump second, Rubio and Cruz bring up the rear.  This may go on long into the night.

Democrats: Another near-even race between Bernie and Clinton.  Bernie in another squeaker, as more people wake up to the fact Clinton is a deeply flawed candidate.

UPDATE, 3/16: A really interesting result in an “open primary” state (in which a voter may walk into the polling place as a member of one party, but ask for, and vote on a ballot for the other party).  There are endless possibilities for mischief here.  People can cross the party line to vote FOR one candidate because he/she has impressed them, or they can vote for someone who they consider a weak candidate, in hopes of causing a weak candidate to go against their real preference in November.  Did this happen in Ohio?  Well, the TV networks noted large numbers of crossovers.  What did they intend to accomplish?  If they crossed from Democrat to Republican, it may have been intended to cause Trump to win over Kasich, the governor of he state, or it may have been to cause Kasich to win his first primary and stay alive, thus weakening the Trump Juggernaut.  Look for more reporting from one or more of these angles, starting today.

FLORIDA

Republicans:  Trump.  Rubio completes his slide into irrelevance, or empty-suitedness, as his friends in the Republican ranks begin to tell themselves this Trump guynis not so bad and stop returning Marco’s phone calls.

Democrats: Clinton, in a closer result than many foresaw, as more people wake up to the fact that HRC brings few strengths to the race and adds many unforced errors.

UPDATE, 3/16: No real surprises, except the margins of victory.  I expected Trump to win, not to eat Rubio’s lunch and kick him in the shins.  And Sanders lagged what I expected from him, which was about a 40% showing.  Instead, he got about 35%.

NORTH CAROLINA

Ttump and Clinton.  The usual suspects in the state where the Republican legislature has succeeded in suppressing voter eligibility.

UPDATE, 3/16.  Trump and Clinton, as expected.

I will post soon why Hillary seems to me to be a flawed, unexciting candidate, but she looks more like the front-runner than ever.  And Trump continues to inch toward inevitability.

This week marked the exit of Marco Rubio, who was beloved only by the grandees of the GOP and the ever-loud chorus of Cuban exiles in Miami.  If you don’t belong to either of those groups, it’s likely you couldn’t find any reason to support him.  He has served one term on the Senate, and missed so many votes that he felt compelled to defend that record by saying that “constituent services” were a Senator’s most important function.  Adios, Marco.  I will not miss you at all.

 

 

 

If You’re not Afraid Yet, You’re not Paying Attention

“When Fascism comes to America, it will be wrapped in the flag and carrying a cross.” —Apocryphal, though widely attributed to Sinclair Lewis.

During the last three weeks (sorry, I’ve been absorbed with personal stuff), the political scene in the United States of America has only gotten more frightening.

I’m not going to waste words in some kind of rant about how the advent of Donald Trump as the (near) presumptive Republican nominee for the office of President of the United States heralds the slide of the USA into Fascism.  That does not worry me at all, frankly;  as much as his rise in this campaign year dismays and frightens me, I see no reason (yet) to suppose that he is some sort of crypto-fascist.  Naïve though I may be, what shakes me is the spectacle, week after week, of the Donald rolling through one state after another, making no policy proposals (let alone any sense on any topic) and giving not a hint as to why he wants to be president of this great country, other than his extreme ego, and winning pluralities of votes cast by one of the two major parties, denigrating the intelligence or masculinity or femininity or sanity of all and sundry along the way.

I quoted the line at the top of this post, not as a pretext to talk about Fascism, but as a reflection on the state of the electorate just now.  Depending on your age, you may recall few or many electoral campaigns.  I was around (although a preteen) for what struck the country at large as something very rare and momentous when the Nixon and Kennedy campaigns agreed to a series of televised debates during the campaign of 1960.  The whole thing, in retrospect, seems somewhat diminished by the simple fact that Nixon’s perpetual 5 o’clock shadow and his demeanor on camera took their toll.  Make no mistake, I wanted Kennedy to win, and the debates helped him do just that, but I was struck by the thought at the time that if the appearances of the two candidates were reversed–if Kennedy had the progressive ideas he had, and the ability to empathize with the “have-nots,” but was stuck with the less favorable features of Nixon in a razor-close election, might the whole election have been influenced enough to reverse the outcome?

Debates are now commonplace.  But whereas they were once sponsored by The League of Women Voters, and kept rigorously on-topic, they now are packaged and presented by television (both free and cable) networks, and presided over by employees of those networks, and there is no gravitas, absolutely none.  Trump is a showman and a TV personality, and he carries this persona into each debate.  He routinely uses impolite language and bullies the other participants.  Nobody from the networks can rein him in, and his followers love these performances.

I will admit as often as necessary that I am not a Republican, so the hijacking of that party by this loud vulgarian affects me personally very little, and that, frankly, is where the “…wrapped in the flag and carrying a cross” quote comes in.  Because you see, Trump is very obviously, without a trace of subterfuge, conveniently appropriating those two symbols for his own self-aggrandizement and advantage.  Those whose patriotism manifests itself only in a desire for more “winning” (one of the Trumpster’s favorite catchwords) often find his predictions of plentiful winning in the Trump era soothing.  How will we win and what?  No indication, but it is somehow intertwined with promises to “rebuild the military” even though our military forces have enough weaponry and know-how to defeat any rival on any battlefield, and even despite the fact that no credible enemy threatens to attack.  (No, I am not talking about terrorists here–they, by definition, attack only soft, usually civilian, targets, and have no military objectives, no government, etc., etc., which our military forces are designed and built to fight.)

And the cross?  I find this business particularly painful.  Despite the fact that there is no discernible Christian component to Trump’s “message,” and the man has no history that I’m aware of to say that he is even a believer, let alone a practitioner of any version of Christianity, the  “evangelical” portion of the electorate has fallen into line, delivering pluralities of their primary votes to this guy at nearly every stop.

And how are evangelical voters defined?  Self-identified, we hear.

Anything self-defined defies categorization or any deep understanding, and even two (self-identified) evangelicals may hold contradictory beliefs, but in general, as used in the US, the term seems to mean Protestants with socially conservative views.  I will not (because I can’t with any credibility) debate the “correctness” or essential Christian nature of anyone’s beliefs, but how people of this broad system of belief can embrace this man without any sort of humility as their hero in this election cycle is beyond me.  He demonstrates a “do unto others before they get a chance to do it unto you” ethos, and seems less a moral man than a make-your-own-rules type.  If one could really plumb the depths of others’ souls, one might find that these are the latter day incarnations of Nixon’s “silent majority,” (Nixon himself referred to them as “unyoung, unpoor, and unblack”) those with little in the way of political thought other than that the country has lost its way because “we” are not able to make the rules and call the shots any more.

Much has been said and written about how the Trump supporters are “angry” without any cogent explanation.  I have alluded to the idea before that, in my opinion, they have had their expectations raised far too high and far too often by other politicians, and to them, elected leaders have promised to (fill in the blank: restore prayer in the public schools; eliminate any government aid to the poor; do whatever it takes to eliminate abortion as an option for any woman in any circumstance, etc.), and now here comes someone who has defied expectations and politicians alike.  Can he do it again in 2016?  I don’t think so, but you see, it’s not necessary for me to believe–only that enough voters believe he can deliver on their pet causes to make him the next tenant at 1600 Pennsylvania Avenue in Washington, DC.  Then we might see…oh, who knows…maybe the Donald’s sister on the Supreme Court or one or more of his ex-wives as Secretary of HHS.  Better yet, Sarah Palin as Secretary of, well, something or other, and Chris Christie as Vice-President.  Anyone who doesn’t agree to contribute to “winning” or excluding Muslims or building a wall on the southern border…well, the Donald can just call him or her into the Oval Office (renamed the Trump Chamber by then) and utter the magic words…

“You’re fired.”

And with that, I will suspend myself for the rest of the day.