Justice Scalia Says Rightwing Economic Ideology is Mandated By the Constitution. Really.
Scalia regularly bars video or voice recordings of his off-the-bench speeches, and in at least one fairly recent instance, the details of which I can’t recall, he employed a member of the U.S. Marshals Service to enforce his policy. If I recall correctly, a member of his security detail confiscated a reporter’s or law student’s audio recorder as the audience was leaving the room after the speech; something like that, anyway.
But recently he spoke publicly to a group somewhere in Italy, the speech was recorded, and National Law Journal reporter Michelle Olsen obtained and posted access to a web page that, the How Appealing blog reported, “was then providing access to download the mp3 audio of Justice Scalia’s remarks.” The remainder of that How Appealing post, from yesterday, relates what happened next:
Yesterday, however, Michelle noted that the link to the audio of Justice Scalia’s remarks at that web page had disappeared. Nevertheless, the audio file itself remained available for download from the server for those who possessed the original download link.
Today, Michelle has not only posted the audio of Justice Scalia’s remarks to SoundCloud, but she has also located online another place where the audio of Justice Scalia’s remarks remains available for download (70.7 MB mp3 audio file).
Today, How Appealing follows up with this post:
“Scalia on the Judiciary and Economic Liberty”: Josh Blackman has this post today at his blog.
Blackman, an assistant professor of law at South Texas College of Law in Houston, begins his post by expressing appreciation to Olsen “for retrieving Justice Scalia’s speech in Italy from a new ring of Dante’s inferno (where off-the-record recordings of Justice’s speech wither away in limbo).” He then quotes from the part of the speech that he listened to; he says he’ll post further after listening to the remainder.
A two-paragraph excerpt and a couple of additional quotes that Blackman adds are, in my opinion, jaw-dropping for their bald assertion that the Constitution mandates the particular economic ideology that Scalia ascribes to and therefore prohibits many (most?) of the economics-related laws enacted by Congress.
One added quote has Scalia saying that John Locke was the “guiding light of American independence.” Blackman then writes:
Scalia notes that the structural provisions of the Constitution are most fundamental to protecting economic liberty. He mentions the doctrine of enumerated powers, the Due Process Clause, the takings clause, and the contracts clause.
“Our Constitution provides property owners with relatively few substantive rights. Almost all of our private rights in the Constitution are in the Bill of Rights, which was an afterthought . . . . Judges cannot enact atextual rights to enact their preferred policies.”*
The rightwing justices are big these days on attributing much of their peculiar brand of constitutional jurisprudence to what they say is the “structure” of the Constitution–usually things that are not stated expressly in the Constitution but that conservatives nonetheless claim are inherent in the document. Especially extreme and sometimes bizarre declarations of states’ rights, which, according to this crowd, oddly enough or conveniently enough regularly trumps individual rights, including such individual rights as due process and habeas corpus, and narrower rights such as the right to the assistance of counsel, that underpin the more general ones.
Or, likely, the supposed structure of the Constitution that, in the absence of a specific useful provision, will suffice sometime in the next four weeks to justify voiding a key provision of the Voting Rights Act. The Fifth Amendment doesn’t expressly require due process for states, as it does for “persons,” and has never before been held to incorporate within it “an equal protection component” similar to the one in the Fourteenth Amendment protecting “any person,” as it has for “any person.” But, absent a formal pronouncement by the Court that states and voting districts within states are people too, the Constitution’s structure will suffice, if the oral argument this spring in the current Voting Rights case is an indication.
But I digress. What we have right now, from one of the mouth of one of the five horses, is an express adoption of an extreme laissez faire economics policy agenda in the ostensible name of the Constitution. I hope that Democratic congressional candidates make this known when they address their constituents at Town Hall meetings and are asked about economic-policy issues. We now have a Supreme Court justice who has publicly vowed to use his official position to undermine economic policy that he claims the Founding Fathers–followers of John Locke all, he says–would disapprove.
It’s struck me in recent weeks that statements by Paul Ryan and Mitch McConnell and other congressional wingnuts acknowledge that the Republicans are attempting to stage what amounts to a non-military coup. They lost the popular vote for the House, and soundly lost the White House and the Senate, last fall, yet they will bring down the economy of the United States and will routinely refuse to confirm the president’s judicial and agency-head appointments, and will disallow funding for statutorily mandated agencies and programs, because–as Ryan said a week or two ago–they believe that the Republican policy agenda is better policy.
And now we have a Supreme Court justice announcing, if quietly, that he will try to use the Court to do the same.** In the name of John Locke, no less.
*Indent-format-corrected to show boundary of quote.
It is like a discussion I had just recently, either there is mens rea or there is no mens rea. There can be only one. The differential is what caused mens rea. Either the defendant ordered up a six pack of beer or drugs and caused it to themselves or it occurred to the person in a natural state. How can the later be their fault?
Ginsburg made me want to throw up with her explanation.
It isn’t Ginsburg’s fault. She joined Kennedy’s dissent in Clark v Arizona; she was not in the majority in Clark. In fn. 3 in her opinion in Lancaster (the opinion you’re talking about), she makes clear that she recognizes that the reason Lancaster didn’t challenge the constitutionality of the Mich. S. Ct.’s interpretation of the statute in Carpenter was the ruling in Clark–and she seems to be inviting a request that the Court reconsider that 5-4 decision. In any event, the upcoming cert. petition that we both care about concerns that statute, and Carpenter–and the denial of the right to present a DIRECT absence-of-mens-rea defense–in a NO-capacity case, not a diminished capacity case. And in THAT case, unlike in Lancaster, the constitutionality of the statute as interpreted in Carpenter SURE AS HELL has been raised.
PS: Ginsburg also joined Breyer’s dissent from denial of cert. in Delling v. Idaho last Nov. (as did Sotomayor).