R.I.P Justice Scalia

[Michael Slusser]

Not only that, I am quite certain that Justice Scalia would quibble with the statement's characterizations of his work.  He did not think it right for a judge to decide cases on the basis of the judge's personal convictions.  He would not have been comfortable with the notion that he was a friend to any particular views on moral issues.  Law of course embodies moral judgments.  But those judgments, he believed, were largely reserved to the political branches of the state and federal governments and to the people individually.  The courts' job is simply to enforce the laws in a manner consistent with the text's original public meaning. 

Legal scholars and others will debate for decades over the propriety of his approach to jurisprudence and over whether he applied that approach consistently in all his own work.  He always enjoyed that debate.  But I think that if presented the LCMS press release, he would likely have jotted off a good-natured corrective.

Excellent observation. I think he tried honestly not to be on anyone's political team; and I'm sure that when confronted with a conflict between the Constitution and his personal moral and political convictions he gave priority to the Constitution as he understood it.

He also wrote some of the most wonderful prose I've read.

Peace,
Michael

[Charles Austin]

Peter writes:
In the immediate aftermath of news, President Harrison called the deceased a great friend of the LCMS in his role on the SCOTUS and a stalwart champion of issues dear to all Christians.

I comment:
If this is, indeed, what the Synod President said, then the statement is simply false. There are a significant number of Christians who do not consider the late justice their champion.

The Synod President's statement asked God to:
... give this nation leaders and justices who recognize the unchanging and rational truth of natural law, which accords with the Ten Commandments. And grant us justices and leaders who recognize, as did our founders, the great benefit of a religious citizenry for the well-being of all. Amen."
I comment:
That statement has enough goopy theological/constitutional/civic/historical/social and political wiggle-waggles to make a bowl of jello look like a piece of granite.
   I cannot find the quote immediately, but one of the late justice's remarks said that he was "sorry" that the constitution gave permissions and rights to the "scruffy" ones (protestors, I think) that he did not like. I suppose we ought to be glad that he recognized the rights, but it bothers me that such a high-placed jurist would regret that those rights were given.
   On the more positive side, this humble correspondent was always impressed and pleased with the way Justice Scalia wrote and his clear and forceful use of the English language. I could dislike what he said, while recognizing the art and skill with which he said it.

[David Garner]

   I cannot find the quote immediately, but one of the late justice's remarks said that he was "sorry" that the constitution gave permissions and rights to the "scruffy" ones (protestors, I think) that he did not like. I suppose we ought to be glad that he recognized the rights, but it bothers me that such a high-placed jurist would regret that those rights were given.

I'd like to read the quote in context.

[Steven W Bohler]

Here's an article which references it: http://blog.constitutioncenter.org/2015/11/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes/

[David Garner]

Here's an article which references it: http://blog.constitutioncenter.org/2015/11/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes/

Thank you.  So the quote:

"Scalia said as a jurist who believes in a pure texualist reading of the Constitution, he has made some tough calls in his career, especially in free-speech cases where his vote went against his personal principles.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. “But I am not king.”"

Interestingly, nowhere does he suggest he is sorry they have these rights.  Only that if it were solely up to him, people like the Gregory Lee Johnson would be in jail.  If one reads carefully and critically, one might see that Justice Scalia, far from lamenting the existence of such rights, is praising them.  They are a check against the tyranny of the majority.  "But I am not king."  Nor does he wish to be.

Context is quite important.

[Charles Austin]

Thank you, Pastor Bohler, for giving the context of the comment by the late justice.
My comment remains. I find it sad that a jurist, especially a constitutional jurist, regrets that certain rights were given and would limit those rights if he were "king" (or perhaps in the majority on the court?).
No, Mr. Garner, I do not see his remarks as "praising" the right to protest. How can they be when he would limit those rights?

[James_Gale]

   I cannot find the quote immediately, but one of the late justice's remarks said that he was "sorry" that the constitution gave permissions and rights to the "scruffy" ones (protestors, I think) that he did not like. I suppose we ought to be glad that he recognized the rights, but it bothers me that such a high-placed jurist would regret that those rights were given.

You've got the story just wrong enough to flip its meaning entirely. 


First, citing the text and context of the First Amendment, Scalia firmly and consistently supported freedom of speech.  That was true both when "liberals" wanted to limit speech (e.g., Citizens United) and when "conservatives" wanted to do so (e.g., Texas v. Johnson and US v. Eichman (cases striking down laws that criminalized mistreatment of the American flag)).  Scalia argued that his position of free speech was driven, not by his personal views on the subject, but by the law.  The law impelled his judicial decisions whether or not he liked the outcome. 


The Court -- as he put it, nine old, non-diverse people, all of whom had graduated from one of just two law schools -- ought not act as a legislature, imposing its moral judgments on the country.  Instead, the Court's job is to interpret the Constitution and other laws enacted by the political branches of the federal and state governments.  In so doing, the Court was permitting legislatures -- through the election process, all accountable to the people -- to make the moral judgments the infuse the law.

In making this point, Scalia (probably more than once and almost certainly in jest) said that if he were king, he would imprison the sandal-wearing protestors who burned the flag.  But neither he nor any other judge is a king or queen.  And he would say that that is a very good thing.  In other words, he was not at all sorry that he was unable to imprison protestors.  Instead, he was grateful that under our system -- under our Bill of Rights -- nobody has the unchecked power to do such a thing.  Thanks be to God, the law does not permit it.

[SomeoneWrites]

Thank you, Pastor Bohler, for giving the context of the comment by the late justice.
My comment remains. I find it sad that a jurist, especially a constitutional jurist, regrets that certain rights were given and would limit those rights if he were "king" (or perhaps in the majority on the court?).
No, Mr. Garner, I do not see his remarks as "praising" the right to protest. How can they be when he would limit those rights?

Strange, the article gave me more respect for him.  I read it as "He doesn't like people desecrating something he treasures, but because he respects the rule of the constitution, he judges accordingly."  The point is, is he WOULDN'T limit those right, and in fact didn't, because his value of the law is held higher than his personal proclivities.  I'm sure there's a number of positions one could take on the matter though. 

[Dan Fienen]

For some Justice Scalia was a conservative ipso facto that made him a bad man, or at least a bad jurist.  It just remains to show how his writings can be interpreted to demonstrate it.

[Steven W Bohler]

Thank you, Pastor Bohler, for giving the context of the comment by the late justice.
My comment remains. I find it sad that a jurist, especially a constitutional jurist, regrets that certain rights were given and would limit those rights if he were "king" (or perhaps in the majority on the court?).
No, Mr. Garner, I do not see his remarks as "praising" the right to protest. How can they be when he would limit those rights?

Strange, the article gave me more respect for him.  I read it as "He doesn't like people desecrating something he treasures, but because he respects the rule of the constitution, he judges accordingly."  The point is, is he WOULDN'T limit those right, and in fact didn't, because his value of the law is held higher than his personal proclivities.  I'm sure there's a number of positions one could take on the matter though.

I am quoting this because I have Rev. Austin on my "Ignore" list and so only see his posts when they are quoted by another. 

Rev. Austin,

Justice Scalia did NOT say he regretted that those rights were given.  Or that they were given to people he did not like (or to those whose views were different than his).  Rather, he said that if it were up to him (which it was not -- that is the whole point of his comment!) no one -- not just only certain persons -- would have such rights as to burn the American flag.  But SINCE THE CONSTITUTION GIVES THESE RIGHTS he is bound to find accordingly, despite his personal views.  Your post shows either a complete lack of understanding of what Justice Scalia said (and meant) or a malicious twisting of his words to fit your own agenda.  Neither of which is a good thing, in case you could not figure it out.

[peter_speckhard]

Peter writes:
In the immediate aftermath of news, President Harrison called the deceased a great friend of the LCMS in his role on the SCOTUS and a stalwart champion of issues dear to all Christians.

I comment:
If this is, indeed, what the Synod President said, then the statement is simply false. There are a significant number of Christians who do not consider the late justice their champion.

The Synod President's statement asked God to:
... give this nation leaders and justices who recognize the unchanging and rational truth of natural law, which accords with the Ten Commandments. And grant us justices and leaders who recognize, as did our founders, the great benefit of a religious citizenry for the well-being of all. Amen."
I comment:
That statement has enough goopy theological/constitutional/civic/historical/social and political wiggle-waggles to make a bowl of jello look like a piece of granite.
   I cannot find the quote immediately, but one of the late justice's remarks said that he was "sorry" that the constitution gave permissions and rights to the "scruffy" ones (protestors, I think) that he did not like. I suppose we ought to be glad that he recognized the rights, but it bothers me that such a high-placed jurist would regret that those rights were given.
   On the more positive side, this humble correspondent was always impressed and pleased with the way Justice Scalia wrote and his clear and forceful use of the English language. I could dislike what he said, while recognizing the art and skill with which he said it.

Nobody gets things exactly wrong with your degree of precision. A statement by the justice of how glad he is that people have rights despite his personal preference is taken by you to mean he is sorry they have those rights.

The sanctity of human life is an issue dear to all Christians. That you dwell in the goofy sect of liberal Protestantism is your problem.

That you find a church leader praying for devout secular leaders per Luther's catechism (and in the case of a nation led by the people, a devout citizenry) to be such goopy wiggle-waggle is a further comment on you and your church, not President Harrison. 

[David Garner]

Thank you, Pastor Bohler, for giving the context of the comment by the late justice.
My comment remains. I find it sad that a jurist, especially a constitutional jurist, regrets that certain rights were given and would limit those rights if he were "king" (or perhaps in the majority on the court?).
No, Mr. Garner, I do not see his remarks as "praising" the right to protest. How can they be when he would limit those rights?

You apparently presume that the will to see something punished does, and ought, simultaneously confer the power to so punish.

By contrast, Justice Scalia made clear that his personal wish to punish others does not give him the legal or moral right to execute such a punishment, since we are a nation of laws and he, as a Supreme Court justice, is bound by the Constitution.  Perhaps this is a case where the psychological phenomenon known as transference is at play on your end.  That is, were you a Supreme Court justice, perhaps you would feel unconstrained by the Constitution and the law and thus act to do that which you would like to do.  Justice Scalia, to his credit, does feel constrained to refrain from acting where the Constitution limits his authority to act.  Good for him.

[Donald_Kirchner]

Thank you, Pastor Bohler, for giving the context of the comment by the late justice.
My comment remains. I find it sad that a jurist, especially a constitutional jurist, regrets that certain rights were given and would limit those rights if he were "king" (or perhaps in the majority on the court?).
No, Mr. Garner, I do not see his remarks as "praising" the right to protest. How can they be when he would limit those rights?

Strange, the article gave me more respect for him.  I read it as "He doesn't like people desecrating something he treasures, but because he respects the rule of the constitution, he judges accordingly."  The point is, is he WOULDN'T limit those right, and in fact didn't, because his value of the law is held higher than his personal proclivities.  I'm sure there's a number of positions one could take on the matter though.

I am quoting this because I have Rev. Austin on my "Ignore" list and so only see his posts when they are quoted by another. 

Rev. Austin,

Justice Scalia did NOT say he regretted that those rights were given.  Or that they were given to people he did not like (or to those whose views were different than his).  Rather, he said that if it were up to him (which it was not -- that is the whole point of his comment!) no one -- not just only certain persons -- would have such rights as to burn the American flag.  But SINCE THE CONSTITUTION GIVES THESE RIGHTS he is bound to find accordingly, despite his personal views.  Your post shows either a complete lack of understanding of what Justice Scalia said (and meant) or a malicious twisting of his words to fit your own agenda.  Neither of which is a good thing, in case you could not figure it out.

Steve,

I think what we see manifested after the death of Scalia is the progressive and somewhat fascist view that one's personal beliefs better come out of ignorance and up to speed with the progressive view and, if one doesn't, it is quite sad and, if necessary, the progressive will use the means necessary to change one's views. Note my comment about the MSNBC spot about the ignorant folk who actually think that their children belong to them. Note the recent campus demonstrations in which violence was advocated as well as abolition of the 1st Amendment.

Compare this to Scalia's view of applying the Constitution to legal issues and vehemently disagreeing with his liberal colleagues. Yet he was a very close personal friend of Justice Ruth Bader-Ginsburg and a hunting buddy with Justice Kagan.

Too many haters...

[Michael Slusser]

For some Justice Scalia was a conservative ipso facto that made him a bad man, or at least a bad jurist.  It just remains to show how his writings can be interpreted to demonstrate it.

For others, that ipso facto made him a good man, or at least a good jurist. They will praise him for having been on the right side.

Peace,
Michael

[mariemeyer]

While it might have been nice for the press release to offer condolences to the survivors I don't think that was the point. It was directed to LCMS members, not the Scalia family. It focuses, therefore, on how Scalia was a stalwart friend of the LCMS on the issues related to his role on the court and who was a great man whose loss wil be keenly felt. I read plenty of articles and press releases about the death of Richard Neuhaus that didn't focus on condolences but rather on the effect his death would have on the pro-life movement. I didn't take offense, and I'd be stunned if anyone in the Scalia family takes offense at Harrison's words. And if it doesn't bother them, why should it bother anyone on this board?

It's the first reaction, Pr. Speckhard. It's not necessary to wait until a person is buried to talk about how his death will affect your political interests, but I thought this haste was tacky. Had his body even been returned to Washington? What was so time sensitive that SP Harrison had to rush his reaction out? Do LCMS members have a short attention span? I haven't noticed that.

I doubt if anyone in the Scalia family will know what Harrison wrote, or care. Everyone will acknowledge that he has been a great jurist. Even his opponents will, I expect, concede the fact. But his death is first a human and a Christian fact, and should be treated as such by spiritual leaders.

YMOV

Peace,
Michael

Agree.

Marie