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.
@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.
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.
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.
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.
+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.
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?
"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)
At 9:30 he said EXACTLY what I was thinking as the question was being asked. I read those on my own in high school, unassigned. And I went into healthcare as a profession, not law.
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.
"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)
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.
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.
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.
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?
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.
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.
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.
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)
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
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.
"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)
“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)
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.
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)
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.
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.
"There is an opinion that parties in free countries are useful checks upon the Administration of the Government and serve to keep alive the spirit of Liberty. --But those of popular character, in Governments purely elective, it is spirit not to be encouraged.” (President George Washington; Farewell Address; Library of America; 1997)
"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.
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
Joseph Story wrote the first commentary on the Constitution of the United States... Really, you are just going to overlook the first ACTUAL great Constitutional commentator, St. George Tucker???
FEDERALIST #65 Alexander Hamilton; Friday, March 7th, 1788 “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse of some public trust. They are of a nature which may with peculiar trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties that by the real demonstration of innocence or guilt.” 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.
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.
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
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
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.
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
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
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.
“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 .
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.
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.
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.
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.
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.
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.
Which is why something like this makes sense to be delegated to the states, If a state wants to eject the homosexuals out of the state, what better way to punish them the state then denying them productive citizens. Only problem is there is variety of classes of people who do not have freedom of mobility to simply up and move when the state becomes oppressive. Privacy in the bedroom is such a important right I would stand behind the federal government enforcing it, but only via a amendment.
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
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
"... 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.
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.
He was a genius pure and simple
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.
Great man.
Fascinating interview. Gonna look for more from Judge Scalia.
One of the most brilliant legal minds out there. Hopefully more judges turn out like him!
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.
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
Great man Great interview
The very first question and his answer.
Hilarious!
I found the book fascinating. I've never been on a Law School Campus to the best of my knowledge.
God bless...RIP.
Ty
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
RIP great man!
+agua4health He's finally on his long way to hell; May he be damned for eternity.
@@martinpescador5642 speak for yourself.
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.
Thank you🙏
Brilliant!
love him!!
“What did you think when E.J. Dionne said you should resign?”
“Who?”
A perfectly cogent "answer."
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.
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.
Impressed,God bless
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.
Yes, and we should also have more voice than past generations.
Perhaps the greatest intellectual of his time and certainly one of the greatest of all time.
He was a brilliant man
"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)
Completely roasted the host at the end.
At 9:30 he said EXACTLY what I was thinking as the question was being asked. I read those on my own in high school, unassigned. And I went into healthcare as a profession, not law.
Guiding principles.
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.
"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)
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.
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.
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.
I really like his answer about his clerks....they could not debate him for sure.
I thought the Congress and senate had a government seminar every weekday.
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?
The greatest supreme court justice and overall champion of liberty our republic has ever had
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.
when did this aire?
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.
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.
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)
32:40 I want to see the senate react to this with the current questions they’re asking nominee Jackson
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
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.
Balance of man
"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)
Watching this for class... GWC :(
Who is the interviewer?
“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)
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.
he never did retire
I just copy what I see on TV (back when there were fancy people and royalty).
"Let me show you..."
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.
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!
I didn't need to even hire voice actors.
Just gotta write for those who live with many people.
"BICAMERALISM OR FIGHT!" JUSTICE SCALIA
People missed him true person are being intentionally vanished because of their wisdom and being greatness on the eyes of people..
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?
"Why now?" What a dumb opening question.
RIP
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)
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.
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.
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!
"There is an opinion that parties in free countries are useful checks upon the Administration of the Government and serve to keep alive the spirit of Liberty. --But those of popular character, in Governments purely elective, it is spirit not to be encouraged.”
(President George Washington; Farewell Address; Library of America; 1997)
59:06 Well... _that_ didn't go as planned...
well... Obama ordered his CIA to kill him.
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 ^
"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.
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
Joseph Story wrote the first commentary on the Constitution of the United States... Really, you are just going to overlook the first ACTUAL great Constitutional commentator, St. George Tucker???
FEDERALIST #65
Alexander Hamilton; Friday, March 7th, 1788
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse of some public trust. They are of a nature which may with peculiar trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties that by the real demonstration of innocence or guilt.”
PUBLIUS
Its brilliant if you ask me because it reveals the true nature of both sides at any time.
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.
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.
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
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?
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.
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
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
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.
todays generation does have a say which is by passing amendments
Pro Se Litigants will read it too Nino God Bless your Soul SIr YES Add the General Public NINO!!!!!!!
“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 .
Press[ure]?
[Teacher_of_][pique-ing_topics]?
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.
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.
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.
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.
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.
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.
Which is why something like this makes sense to be delegated to the states, If a state wants to eject the homosexuals out of the state, what better way to punish them the state then denying them productive citizens.
Only problem is there is variety of classes of people who do not have freedom of mobility to simply up and move when the state becomes oppressive.
Privacy in the bedroom is such a important right I would stand behind the federal government enforcing it, but only via a amendment.
My Biography is my profile
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