R.I.P Justice Scalia

[Charles Austin]

Those eagle-eyed people include folks who would criticize President Obama if he did attend the funeral. They would criticize the president if he ate a type of breakfast cereal they did not like.

[Fletch]

    President Bush didn't attend the funeral of Justice Byron White.

True.  And President Bill Clinton did not attend the funeral of Thurgood Marshall.  Vice President Gore did.

I haven't been able to find out if there was a (good) reason that Clinton did not attend the funeral.  (prior foreign travel commitment, logistics/security, etc).  What may be problematic for President Obama is if he is seen golfing locally within a 24 hour window around the funeral, which is in Washington, DC.  Or golfing elsewhere without another good reason to be traveling outside the capital.

At least it will be a problem for some people, if it turns out anything like that.  Those people are unlikely to include many of the punditry elite...although I am always prepared to be wrong and surprised.

Sterling Spatz

Perhaps he is taking advantage of Air Force One again.  Mere chicken feed.  https://www.youtube.com/embed/c1Q1qzfL9rE

... F

[Richard Johnson]

    President Bush didn't attend the funeral of Justice Byron White.

Don't confuse us with facts!

[MaddogLutheran]

Those eagle-eyed people include folks who would criticize President Obama if he did attend the funeral. They would criticize the president if he ate a type of breakfast cereal they did not like.

I cannot deny that there will be people who criticize the president no matter what...even for doing the right thing.

Of course, I'm sure I could find people who will say it's no big deal the President Obama golfs so much--after all, so did George W. Bush.  Except of course, for the fact that he stopped golfing, for the duration of his presidency, at the initial invasion of Iraq--because he thought it would look unseemly for a president to be seen out on the golf course while American soldiers are in combat.

It was a big deal, to the fourth estate anyway, that President W. Bush spent so much time "on vacation" at his Crawford ranch in Texas.  Mainly they didn't like it because they hated Crawford (insufficiently urbane).  These are of course some of the same people who tell us it's no big deal that the president spends an extended Christmas holiday in Hawaii...because the modern technology allows the president to work from anywhere.

Little publicized fact about the Christmas holiday and George W. Bush.  During his 8 years, he was spent Christmas Eve/Day at the White House.  This was not for his convenience, but for the extended staff that supported the presidency--allowing the maximum number people to have a normal schedule and spend the holiday with their families.  When the president travels, lots of people do too.  I believe he learned this from his father, who followed the same practice.

The Obamas have always left for Hawaii before Christmas.  I don't begrudge them that, but it is a difference.

Sterling Spatz

[pearson]

From The Account Of Scalia's Remarks:

In the lunch session, he was asked a question about his views on "natural law." He said, wittily, that he practices "American law." Natural law might well be something appropriately taken into account by legislatures but not by courts. Whatever he might think as a Catholic citizen was one thing; his role as a judge was another.

The man was nothing if not consistent in his views.

Back in 2003, when I had a summer fellowship to study philosophy of law in Michigan, Justice Scalia joined us for three days during the program.  One morning, the discussion turned to natural law and its relation to various recent Supreme Court decisions.  Screwing up my courage (I was pretty intimidated just being in the same room with him), I asked him how, as a Roman Catholic, he reconciled Thomistic natural law theory (which situates civil law within the context of natural law, divine law, and eternal law) with his "originalism" (which, most generically, identifies civil law with black-letter law embedded in historical documents, legislation or case law).  He hesitated less than a moment, and then said, "I don't."

He went on to discuss the famous (well, "famous" among those who study such things; probably nowhere else) debate between H. L. A. Hart and Lon Fuller over the relationship between law and morality.  Hart was a chastened and somewhat reluctant legal positivist, who thought that law and morality had only an incidental connection, while Fuller thought law and morality were intimately and internally connected.  Scalia was insistent: Hart got it exactly right.  Morality, even of the natural law variety, should never be used as the foundation for a judicial decision, at least within the American context.

I have thought since that day that Scalia's "originalism" was species of thinly-disguised legal positivism, where any sort of moral "penumbra" surrounding the interpretation of American law was to circulate its light as far away from the courts as possible.  It sounds like he held that position consistently to the end.

Tom Pearson   

[Charles Austin]

Dr. Pearson, I appreciate insights like yours from people with first-hand experience in the ideas and personages under discussion.

[Dave Benke]

From The Account Of Scalia's Remarks:

In the lunch session, he was asked a question about his views on "natural law." He said, wittily, that he practices "American law." Natural law might well be something appropriately taken into account by legislatures but not by courts. Whatever he might think as a Catholic citizen was one thing; his role as a judge was another.

The man was nothing if not consistent in his views.

Back in 2003, when I had a summer fellowship to study philosophy of law in Michigan, Justice Scalia joined us for three days during the program.  One morning, the discussion turned to natural law and its relation to various recent Supreme Court decisions.  Screwing up my courage (I was pretty intimidated just being in the same room with him), I asked him how, as a Roman Catholic, he reconciled Thomistic natural law theory (which situates civil law within the context of natural law, divine law, and eternal law) with his "originalism" (which, most generically, identifies civil law with black-letter law embedded in historical documents, legislation or case law).  He hesitated less than a moment, and then said, "I don't."

He went on to discuss the famous (well, "famous" among those who study such things; probably nowhere else) debate between H. L. A. Hart and Lon Fuller over the relationship between law and morality.  Hart was a chastened and somewhat reluctant legal positivist, who thought that law and morality had only an incidental connection, while Fuller thought law and morality were intimately and internally connected.  Scalia was insistent: Hart got it exactly right.  Morality, even of the natural law variety, should never be used as the foundation for a judicial decision, at least within the American context.

I have thought since that day that Scalia's "originalism" was species of thinly-disguised legal positivism, where any sort of moral "penumbra" surrounding the interpretation of American law was to circulate its light as far away from the courts as possible.  It sounds like he held that position consistently to the end.

Tom Pearson

Thanks for this - extremely helpful and insightful.

Dave Benke

[peter_speckhard]

From The Account Of Scalia's Remarks:

In the lunch session, he was asked a question about his views on "natural law." He said, wittily, that he practices "American law." Natural law might well be something appropriately taken into account by legislatures but not by courts. Whatever he might think as a Catholic citizen was one thing; his role as a judge was another.

The man was nothing if not consistent in his views.

Back in 2003, when I had a summer fellowship to study philosophy of law in Michigan, Justice Scalia joined us for three days during the program.  One morning, the discussion turned to natural law and its relation to various recent Supreme Court decisions.  Screwing up my courage (I was pretty intimidated just being in the same room with him), I asked him how, as a Roman Catholic, he reconciled Thomistic natural law theory (which situates civil law within the context of natural law, divine law, and eternal law) with his "originalism" (which, most generically, identifies civil law with black-letter law embedded in historical documents, legislation or case law).  He hesitated less than a moment, and then said, "I don't."

He went on to discuss the famous (well, "famous" among those who study such things; probably nowhere else) debate between H. L. A. Hart and Lon Fuller over the relationship between law and morality.  Hart was a chastened and somewhat reluctant legal positivist, who thought that law and morality had only an incidental connection, while Fuller thought law and morality were intimately and internally connected.  Scalia was insistent: Hart got it exactly right.  Morality, even of the natural law variety, should never be used as the foundation for a judicial decision, at least within the American context.

I have thought since that day that Scalia's "originalism" was species of thinly-disguised legal positivism, where any sort of moral "penumbra" surrounding the interpretation of American law was to circulate its light as far away from the courts as possible.  It sounds like he held that position consistently to the end.

Tom Pearson

Agreed, but that position presupposes that judges aren't legislating from the bench. While natural law has no  role in a judicial decision because such decisions must be based solely on the text of the constitution, natural law has a great role in legislative decisions at any level. A state senator or a U.S. Congressman considering whether to enact a law can and in some cases ought to take natural law into account. So the point is not so much that natural law has no role in the formation of laws but that judges, because they have (at least according to the constitution) no role in the formation of laws, ought not consider anything, not even natural law, except the text of the law when rendering decisions.

If the Supreme Court is going to allow other things to help decide cases, such as implied rights, the history of the legislation beyond the text of it, or UN resolutions or what have you, then natural law is fair game. All the judges have to play by the same rules for the system to work.

[James_Gale]

I just came from the Court.  The line to get in is about two hours long.  Very moving.

[LutherMan]

I just came from the Court.  The line to get in is about two hours long.  Very moving.

Was Laura Ingraham in the line of former clerks?

[Donald_Kirchner]

I just came from the Court.  The line to get in is about two hours long.  Very moving.

Was Laura Ingraham in the line of former clerks?

She clerked for Justice Thomas, didn't she?

[James_Gale]

I just came from the Court.  The line to get in is about two hours long.  Very moving.

Was Laura Ingraham in the line of former clerks?

She clerked for Justice Thomas, didn't she?

Yes.

[LutherMan]

I just came from the Court.  The line to get in is about two hours long.  Very moving.

Was Laura Ingraham in the line of former clerks?

She clerked for Justice Thomas, didn't she?

Oooops, my bad, you are correct...

[JEdwards]

The man was nothing if not consistent in his views.

Back in 2003, when I had a summer fellowship to study philosophy of law in Michigan, Justice Scalia joined us for three days during the program.  One morning, the discussion turned to natural law and its relation to various recent Supreme Court decisions.  Screwing up my courage (I was pretty intimidated just being in the same room with him), I asked him how, as a Roman Catholic, he reconciled Thomistic natural law theory (which situates civil law within the context of natural law, divine law, and eternal law) with his "originalism" (which, most generically, identifies civil law with black-letter law embedded in historical documents, legislation or case law).  He hesitated less than a moment, and then said, "I don't."

He went on to discuss the famous (well, "famous" among those who study such things; probably nowhere else) debate between H. L. A. Hart and Lon Fuller over the relationship between law and morality.  Hart was a chastened and somewhat reluctant legal positivist, who thought that law and morality had only an incidental connection, while Fuller thought law and morality were intimately and internally connected.  Scalia was insistent: Hart got it exactly right.  Morality, even of the natural law variety, should never be used as the foundation for a judicial decision, at least within the American context.

I have thought since that day that Scalia's "originalism" was species of thinly-disguised legal positivism, where any sort of moral "penumbra" surrounding the interpretation of American law was to circulate its light as far away from the courts as possible.  It sounds like he held that position consistently to the end.

Tom Pearson

Agreed, but that position presupposes that judges aren't legislating from the bench. While natural law has no  role in a judicial decision because such decisions must be based solely on the text of the constitution, natural law has a great role in legislative decisions at any level. A state senator or a U.S. Congressman considering whether to enact a law can and in some cases ought to take natural law into account. So the point is not so much that natural law has no role in the formation of laws but that judges, because they have (at least according to the constitution) no role in the formation of laws, ought not consider anything, not even natural law, except the text of the law when rendering decisions.

If the Supreme Court is going to allow other things to help decide cases, such as implied rights, the history of the legislation beyond the text of it, or UN resolutions or what have you, then natural law is fair game. All the judges have to play by the same rules for the system to work.

I would only add that sometimes the text of a law or constitution includes language that calls for a value judgment, which ought to be informed by natural law.  Probably the most obvious example is the Eighth Amendment's ban on "excessive" fines and bail, and "cruel" and unusual punishment.  Recently, there has been much discussion about what constitutes a "reasonable" accommodation under RFRA. 

Jon

[pearson]

I would only add that sometimes the text of a law or constitution includes language that calls for a value judgment, which ought to be informed by natural law.  Probably the most obvious example is the Eighth Amendment's ban on "excessive" fines and bail, and "cruel" and unusual punishment.  Recently, there has been much discussion about what constitutes a "reasonable" accommodation under RFRA.

My best guess is that Justice Scalia would have said that legal judgments involving considerations of value should be based on those values embedded in the original text of the relevant documents, legislation or case law.  In that case, contemporary value judgments would be derived, not from the precepts of natural law, but from the antecedent texts and decisions.  I suppose this kind of "originalism" is an exercise in historical sociology rather than an application of the requirements of natural law.  For instance, I suspect Scalia would have assessed what counts as "reasonable accommodation" in the RFRA by scrutinizing the prior trajectory of case law on the subject, not by consulting natural law.  Again, that's my best guess.

Tom Pearson