The Scalia Temptation

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In his own words:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.

Justice Antonin Scalia, September 2010

When Supreme Court Justice Antonin Scalia spoke with law professor Calvin Massey about the 14th Amendment, he was still respected as a Constitutional originalist. The Constitution does not change.

There are other ways to interpret the foundation of American law.

The of idea of a “Living Document” is not new. Abraham Lincoln argued that the Constitution was an instrument of national spirit, that it was a codification of the ideals contained in the Declaration of Independence. He held that the Constitution protected certain rights of all people, even if the founders did not see the implication of what they were ratifying.

The 14th Amendment to the Constitution contains a fairly straightforward prohibition. Government at any level is told that it cannot “deny to any person within its jurisdiction the equal protection of the laws.”

Today, most of us would regard that plainest of plain language to be plainly understandable. “Any person” means … well … any and all individuals. Those who in 1868 thought of women as other than persons were, not to put too fine a point on it, mistaken. History and the arc of the moral universe taught us long ago that equal protection of the law includes, for example, the right to own property, a right occasionally denied to women in the nineteenth century.

Conservatives almost uniformly hate the liberal idea of a “Living Constitution,” a framework for which settled principles are applied to new and modern views.

For many years, conservatives held that applying equal protection to women was a modern construct. You might privately think that “any person” would include women and that “equal protection” would include such liberties as the right to own property. And you might be right by today’s standards. But that can be considered by conservatives as an expansion of those words beyond their original meaning.

Those who believe in “Original Intent” might object to that expansion. According to this strain of conservatism, lawmakers who wrote and passed the 14th Amendment to the Constitution intended the words “any person” to mean “any men,” no more no less. And you could discover that intention by carefully examining old transcripts of legislative debate.

Justice Scalia went even a little beyond that. He was not only an originalist, he was a textual originalist. He was not interested in what those who wrote an amendment, or a law, or the Constitution itself, meant by their own words. He would not consider what those who voted for those documents thought they were ratifying. He was interested only in what the text said, and what the words in that text would mean to a reasonable person at the time the Constitution was ratified and, later, when it was amended, or when a law was passed.

According to this logic, reasonable people in 1868 did not think of equality for women as reasonable, and so “equal protection of the laws” for “any person” did not mean that women were equal under the law. And since it did not mean that then, it does not mean that now. At least not as it pertains to the Constitution and its Amendments.

This is a comfortable way of thinking for conservatives. If words and ideas only mean what they meant in centuries past, the law will never serve as a guiding light for the future. Rather it will remain a strong bulwark against progress.

Thus, Justice Scalia could argue against equal protection for gay people with a simple question.

When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?

But the Scalia standard, how reasonable people at the time of passage would view the text of any law, devolved in his later years.

  • Women who had suffered blatant discrimination on the orders of the top executives of a large corporation sued as a group. The law allowed a group to sue as a class in cases of corporate discriminatory policies. They were told by Justice Scalia that they could not sue collectively. The corporate discrimination was based on verbal instructions. Since there were no written instructions, there was no policy.

    No policy, no suit. Case dismissed.

  • He rejected voting rights as racial entitlement. He reasoned that voting rights protections had been passed by large majorities in Congress. That passage proved racism was no longer a significant threat to voting rights. Therefore the law was not needed and was unconstitutional.

    Passage of the law invalidated the law.

  • He argued that the 8th Amendment prohibition against cruel and unusual punishment did not prohibit torture itself if it was inflicted on someone who was not actually convicted of a crime. If the victim of cruel and unusual treatment had simply been arrested, detained, then there was no violation.

    When he’s hurting you in order to get information from you, you don’t say he’s punishing you. What’s he punishing you for?

    Justice Antonin Scalia,    interviewed by Lesley Stahl April 27, 2008

  • A man who had been falsely accused, then convicted, and who had come within days of execution, was eventually released. He sued the prosecutor for deliberately concealing evidence that would have proven his innocence. If that sort of concealment was a pattern, the prosecutor would be personally liable for his misconduct. In fact, the prosecutor was eventually shown to have concealed evidence in other cases against other innocent people, many people, as well. A lot of innocent folks were sent to prison as a result.

    Antonin Scalia voted against the innocent man, and in favor of prosecutor. You see the prosecutor had concealed different kinds of evidence in each case. So the pattern of concealing evidence was not actually a pattern at all.

There was, however, a discernible pattern in the trajectory of Antonin Scalia’s legal reasoning.

He rejected the modern meaning of old texts, even when that meaning seemed clear, since he thought of modern views as a distortion. He rejected efforts to see what those who wrote and ratified the law meant by the law. He preferred to examine how a reasonable person living at the time would see the law.

Over time, the word “reasonable” evolved into a conservative living word, as Justice Scalia’s reasoning became an endless search for misplaced commas and double entendres.

The inevitable legal temptation proved irresistible.

Antonin Scalia was himself the most reasonable person he had ever known. “Reasonable” became, as it had to become, identical with Scalia’s image of a time-transplanted version of himself. How would he have considered the words contained in legal text, had he lived when laws and amendments were passed?

He was generous in his interpretation, as he searched diligently for the most reasonable way to see the law. He eventually discovered the simplest, most effective way of finding that reasonable view.

He simply consulted the darkest corners of his own soul.

News, Trump, Bernie, Supremes, Voting Rights

Political Whispers of Bigotry and a Suicide in Missouri


There was something in the sadness and shock that brought back a memory. It is primal, at least for me, in that the story goes back before I was born.

He was a charismatic figure, homespun, with an I’m-just-one-of-you country boy approach. He was nationally known, and he might have become President. He had a populist economic agenda in a time of economic hardship. That hardship was grinding in its effect on ordinary people. He had a corn pone sort of theme song, “Every Man a King”, and a slogan, “Share Our Wealth”.

If he was not a stone cold racist, he did play the role. With a few casual comments to reporters, he began spreading the rumor that a longtime political opponent had some African ancestry. It was made up, but it enraged the man’s son-in-law, a prominent doctor in Baton Rouge. In 1935, Huey Long was shot and killed by that doctor in the capitol building of Louisiana. The doctor was immediately killed by Long’s body guards.

In 1962, a book by Allen Drury was made into the movie Advise and Consent. I think I first saw it as a teenager. One episode reminded me of Huey Long. A US Senator played by Don Murray is blackmailed over a past homosexual incident by a Senate colleague, a rabid political partisan who wants his vote. Instead, the blackmailed Senator commits suicide.

As with the fictional suicide and the depression era assassination, the overriding tragedy is death. But it was compounded in a way that became amplified with time. It is tragic that Huey Long’s assailant regarded a false rumor of a black antecedent to be a potential scandal. It is more tragic that society regarded interracial ancestry as anything other than a proud heritage. It is sad that a political figure could be so confident in the bigotry of the times that he knew the rumor would be damaging and could act on that knowledge.

In the 1960’s, it was tragic that cinema audiences, myself included, would regard a fictional episode of gay sexuality as a plausible fictional scandal.

In both cases, our evolving sense of morality and fair play make the tragedy of bigotry itself more obvious now than it was then.

Former United States Senator John Danforth, a Republican, remains highly regarded here in Missouri. When he spoke at the funeral of fellow Republican State Auditor Tom Schweich, people listened. Mr. Schweich recently committed suicide. Danforth pulled no punches. The whispered rumor in this case was that Tom Schweich was Jewish. The whisperer was the chairman of the Missouri Republican Party.

The chairman has acknowledged that he may have casually mentioned that Mr. Schweich was Jewish. He may not have known Schweich attended an Episcopalian church. After all, Schweich’s grandfather was Jewish. He would not have said it in a derogatory manner. It was completely innocent. Kind of like mentioning that someone was Presbyterian.

John Danforth was having none of it. His rebuke was delivered bluntly, as reported by KTVI in St. Louis.

Tom called this anti-Semitism, and of course it was. The only reason for going around saying that someone is Jewish is to make political profit from religious bigotry.

Someone said this was no different than saying a person is a Presbyterian. Here’s how to test the credibility of that remark: When was the last time anyone sidled up to you and whispered into your ear that such and such a person is a Presbyterian?

John Danforth, reported by KTVI-TV2 St. Louis, March 3, 2015

The overriding tragedy, of course, is a death by suicide. It is accompanied by another tragedy. It is shameful that it continues into the 21st century:

That a political figure would become so confident in religious bigotry that he would think to begin a whispering campaign.

That his cynical assessment would be correct.

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Quantum Physics in the Election Booth

Albert Einstein proposed his new theory, special relativity, in 1905 and quickly became famous. It was a strange and exotic set of propositions. The follow up general theory of relativity really shook things up. It was pretty much accepted in physics within a few years.

You might say that Einstein generated a big bang of his own. There followed an explosion of sorts. The merging of time into spacial dimensions brought forth variations. Elementary particles begat lesser particles, then sub-sub-particles. Those particles were just theoretical, explained by strange twists of quantum mechanics in which opposite, mutually exclusive, states of existence could simultaneously be true.

Some scientists felt compelled to assure the public that the wonderfully bizarre reality that operated on a sub-atomic level had no relationship to the world we experience every day. One skeptic, physicist Erwin Schrödinger, proposed a thought experiment to demonstrate the absurdity of the only-true-for-submicroscopic-reality postulate. He suggested a set up involving a Geiger counter and a radioactive substance, a bottle of arsenic, and a cat, all in a closed box.

A random subatomic event might or might not trigger the Geiger counter which might or might not break open the arsenic which might or might not kill the cat. If the prevailing new theories were right, the cat would be both dead and alive until the box was opened and the state of the cat was settled.

As scientists predicted new particles and states of reality, math began to run ahead of experimentation. Little in science is truly static. Settled fact can become open to contradiction as new evidence is uncovered. In fact, mainstream science holds statements to be meaningless unless they are both falsifiable and verifiable by some path of evidence.

The laptop computer, the cell phone, the television, the nuclear bomb all depend on absurd, largely theoretical, operations of the subatomic universe. Many of the ever new particles that scientists visualize in the complexities of their advanced mathematics can only be inferred. There is hope that, one day, advances in measurement will combine with future epiphany to provide at least some tenuous proof of what will never be seen directly.

In the meantime, the theories work. All things wonderfully electronic and modern come from the counter-intuitive, often unproven, theoretical world of exotic subatomic physics. Who needs Schrödinger’s cat when we have cable television?

I had just microwaved dinner and was watching a broadcast on the device Isaac Newton would have dismissed, when I came across a political story that reminded me of the wonderful world of unproven particle theory that nonetheless works.

It has been documented past the point of redundancy that voter fraud is a rare, rare event. It most often happens when some public official wants to declare residency in order to run for office from a pretend residence. In one case it happened when a woman seeking to hide from an abusive ex-spouse tried to disguise her residence.

What doesn’t happen is individual voters trying to influence an election by voting illegally. That is true for three main reasons.

  • It’s amazingly easy to get caught.
  • Penalties against those who are caught are extreme. Fines and prison time can haunt a citizen for a long, long time after the debt to society is paid.
  • Backroom tinkering with results is a lot safer, a lot more effective, and therefore a lot more common than any voter fraud.

There have been efforts to document voter fraud, the individual kind, not the backroom tally manipulation. In Pennsylvania, a city commissioner from Philadelphia found 700 cases of voter fraud over several years. When they were looked into, they pretty much turned out to be something else. The grand total was one.

In Colorado, the Secretary of State found 155 cases. Upon investigation, they were found to be legitimate voters. It seems the Secretary had included the names of immigrants who voted. He neglected to check, so he didn’t know they had become citizens first. It turned out that citizens can legally vote.

During the George W. Bush administration, a nationwide search for voter fraud involved a detailed combing of records for every national, state, and local election over 7 years. It took five years to pour through every vote, then follow up in a search for voter fraud. They did find a handful of double registrations and fewer than ten actual fraudulent votes. That’s nationwide over 7 years.

Around the country, voter ID laws have been carefully restrictive. Lots of minority voters and older folks and students just turned 18 don’t drive. So traditional forms of identification have been discarded. These folks are now required to have drivers licenses or their equivalent to vote. And the equivalent have been made hard to get.

The number of voting booths have been reduced in minority areas. Voting locations have been moved to places that are hard to get to. Voting times have been reduced.

A recent study confirms what is apparent to most folks who have thought about it. The idea is to keep a lot of legitimate voters from voting. The state of Texas is even arguing that it is okay to attempt to discriminate against minority voters if, in their hearts, politicians are only motivated against voters who will support Democrats.

A few observers have labeled the new tactic James Crow, esquire, or Jim Crow, Jr. or Jimmy Crow. It isn’t exactly the same as the poll taxes and literacy tests of old. The racial motivation is not always primary, but the target is largely the same.

The story in North Carolina’s Raleigh News Observer was about voter suppression, moves against voter fraud that will only keep actual voters from voting, and voter fraud itself that is pretty much nonexistent. It seems Republicans are pushing local voting boards pretty hard to keep voters from voting, even when local officials know better.

The story begins this way:

RALEIGH — One of the longstanding arguments against voter ID laws has been that there is no history of significant elections fraud.

But advocates of North Carolina’s new elections law have been making their way across the state to county elections boards to try to make the case that fraud has existed but has been inadequately investigated.

Raleigh News Observer, January 12, 2014

That’s what brought the higher mathematics of subatomic physics to mind. Illegal voters are like the newest class of particles.

Republicans are sure they exist. They simply haven’t found any way to observe them.

But in the world of voter suppression, the theory works. Yes indeed, it does work.

Photo ID and Future Gratitude

You get some news in the form of public announcements. The right lane will be closed on the expressway next week, but the Department of Transportation will see that it’s done after hours. The United Methodist Church Youth will hold a car wash to raise money for the local food pantry. That sort of thing.

But most news comes in two categories. It is news because it contradicts expectations, as when man bites dog. Or it is news because it confirms narrative, as when Mitt Romney insists corporations are people.

This was a story that did both.

Tennessee resident Dorothy Cooper, a 96 year old citizen, gathered up her aging documents put them all in a big envelope, and got a ride with a volunteer. She had heard about a new law that would keep her from voting unless she had photo identification. Most folks have a driver’s license, but she doesn’t drive. Never has. But the state of Tennessee says a free ID will be made available.

When she got to the license bureau, where she could get that free photo ID, she showed officials her rent receipts, a copy of her lease, her voter registration card, and her birth certificate. They said that wasn’t enough and ordered her to go away. She didn’t have the marriage certificate, her husband having died so many years before.

The story appeared in the Chattanooga Times Free Press.

She asked the volunteer, the one who gave her a ride, to call and find out what could be done. The volunteer did just that, asking if Dorothy Cooper could obtain and bring back a copy of the marriage certificate and re-apply for the ID that would allow her to vote. The volunteer encountered laughter from the state worker on the phone. The worker could not fathom anyone going through that much trouble just to vote. She said it had never happened before in her experience.

That this voter was willing to continue seeking rides and revisiting offices made it unusual. But then, she was not stopped from voting since she was in her 20s, not even during the Jim Crow era.

What made it part of a narrative is that the roadblock is not at all unusual. News reports have favored elderly women who have voted all their lives. Here’s an 83 year old widow in Wisconsin. But those affected include more than retired folks, encompassing the working poor, riding buses or walking to jobs. College students living within walking distance of classes usually have college IDs with photos. Legislators have pointedly excluded school IDs. Minorities are disproportionately affected.

Authoritative studies say as many as 5 million legitimate voters will be turned away this year. That’s legitimate. With an L. An exhaustive study pushed by the Bush administration found that over a 5 year period in hundreds of elections around the United States fewer than 2 dozen cases of voter fraud were found that could have been prevented by a photo ID.

2 dozen as opposed to 5 million.

One aspect of the massive voter suppression effort, one that is discouraging to me, is the reaction of some who could have been expected to know better. It seems to me to be part of the unfortunate historical tendency of liberals toward unwarranted conciliation. They (which is a polite way of saying we) too often surrender the rhetorical high ground in the spirit of verbal balance. This would not be more than an annoyance if it did not involve bartering with the rights of others.

Some of those I admire view the entire controversy as entirely political. If you are Republican, you should favor voter suppression. You may defend it as a legitimate defense against voter fraud, but the honest reason is political. Similarly, if you are a Democrat, you should oppose photo ID laws. You may oppose them as a denial of voter rights, but the honest reason is political as well. Nobody wants to lose. Everyone wants to win. End of story.

That the justification for voter suppression is ephemeral is seen as a good debating point. That the deprivation of a basic right is widespread is considered a rhetorical score. That the only real consideration is which politicians benefit is regarded as an immutable truth. The cynicism is regarded as a frank bow toward fairness, a knowing wink toward balance. Nobody is really right. Everyone is in it for pure partisan gain.

It may be part of human nature. It may be a national trait. I suspect it is part of the liberal psyche. We on the left do, after all, enjoy our position of balance, of moderation in all things. And cynicism has it’s own attraction.

It is not a conceit confined to this time and place.

After the Civil War, there was a concerted effort in the would-be-Confederacy to put down newly freed slaves. Intimidation went to violence, often deadly violence. The Republican Congress responded with Freedman’s Bureaus and laws guaranteeing voting rights. These were eventually overturned with the election in 1876 of Rutherford B. Hayes as President. Black people became fair game.

The conciliators of the 1870s and the historical researchers of a few decades later must have felt a certain compromising satisfaction as they crafted a middle course in national debate. No need for evidence. The truth being in the middle was a premise, not a conclusion. Efforts to keep alive the rights of former slaves after a bloody war became, in the politics of the day, “waving the bloody shirt.”

Many decades later, their desire for a balanced approach lived on, long after they were gone from this earthly realm. It infected the textbooks of my youth with misinformation and historical distortion. Republicans became, in the national imagination, Radical Republicans. The laws they passed protecting the rights of former slaves became, in later history, vindictive punishment on the South.

And so, as the torch was passed from one generation to another, then another, we were taught lies in our classrooms.

Today, when an elderly widow, when any legitimate voter, is told she cannot vote for frivolous reasons, we should be outraged on her behalf. That we could count it off as the debatable partisan violation of the rights of some politician to another tick in his election tally is … well … unfortunate. That the ostensible reason for this denial of a basic right is to prevent what virtually never happens is not simply “a good point.” The likely repetition of this injustice in varying degrees as many as 5 million times is not to be opposed simply as a political calculation.

Post-Civil War Republicans paid a political and popular price for going against the public fatigue about black rights. Nearly a century and a half later, we should be thankful for their courage. We should pray for some similar courage within our ranks today.

Perhaps we can be forgiven for the faint hope that some future generation will see past conciliatory balance and cynical rhetorical barter to what will be clear in retrospect to have been right.

And that, looking back on our lives, they also will have cause to be grateful.