Sieg Frickin' Heil
Sep. 29th, 2004 01:05 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
filkertomI understand this man believes he is qualified to be a judge:
Gaaaah.
Supreme Court Justice Antonin Scalia says he believes "abstract moralizing" has led the American judicial system into a quagmire, and that matters such as abortion and assisted suicide are "too fundamental" to be resolved by judges.Read the whole thing. He's insane. He uses the example of suffrage, wherein a disenfranchised group of people protests until it gains rights, as an example implying why the opponents of same-sex marriage should be allowed to prevent rights. He says there was no legal precedent for recusing himself from a case involving Dick Cheney when he was Cheney's hunting buddy.
"What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society ... by judges," Scalia said on Tuesday during an appearance at Harvard University's Kennedy School of Government.
In some cases -- and in response to a question from the audience, he acknowledged Brown vs. Board of Education was one -- there is a societal benefit when a court rules against prevailing popular opinion, but generally speaking it is fundamentally bad for democracy, he said.
Gaaaah.
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(no subject)
Date: 2004-09-29 10:16 am (UTC)As I understand it, the PURPOSE of the judiciary is to ensure the tyranny of the majority as ensconced in their elected legislators and administrators doesn't stomp on the rights or toes of the minority.
"Too fundamental" my well-defined glutei; the point of adjudication in such matters is to keep the country on the course plotted lo these many years; that is, of acknowledging and accepting the differences between the individuals who make it up.
I do believe I need to hit something now.
Who decides?
Date: 2004-09-29 10:47 am (UTC)?I know, the "who can marry" debate has not reached the Supreme Court. Right now the issue is reciprocity--until now each state could legislate its own marriage rules (permissible age, degree of consanguinity, etc.) and all the other states have to accept that people legally married in state A have legal-marriage rights in state B, even if state B's rules have different requirements (a higher age, for example).
Now we have the unmanageable mess of some states defining marriage in a way that allows same sex marriage and others refusing to acknowledge those marriages. At some point it may be necessary for a federal authority or procedure (legislature, court, or constitutional amendment) to remedy this by A) saying states can each define marriage and everyone has to recognize them (the status quo), or B) stepping in and defining marriage for everyone, so no one could disagree about it.
Traditionally, the definition of marriage has been a state issue and each state makes its own rules (although Utah had to agree to give up polygamy in a compromise to be permitted statehood). Therefore, there is little reason to support option B as a logical move. Option A requires that nothing be done. We all sit tight, and states that want same-sex marriage can have it and everyone else has to shut up and acknowledge it.
This strikes me as the right solution--until I think about Utah and what might happen should the Mormon majority vote in plural marriage (though that's unlikely as the mainline LDS church has renounced it formally and only break-away fundamentalist sects practice it). At that point I give up thinking about politics and morality, and go kill a few brain cells with a nonspecific liquid analgesic.
I do think Scalia is a huge jerk and hate the idea that he has so much power to affect the lives of me, my friends, and my loved ones.
But, bottom line, I should have had the iced tea.
correction
Date: 2004-09-29 10:49 am (UTC)Re: correction
Date: 2004-09-29 11:09 am (UTC)Re: correction
Date: 2004-09-30 03:43 am (UTC)Re: correction
Date: 2004-09-30 07:39 am (UTC)Re: correction
Date: 2004-09-30 07:42 am (UTC)Re: correction
Date: 2004-09-30 07:49 am (UTC)My parents are interpreters, and have invented lots of symbols to take notes during meetings. A blocky "h" means "chair(man)"; a "Q" with a long tail means "detail" (as in "de tail of my cat").
I thought "^$?" was something similar.
(no subject)
Date: 2004-09-29 10:54 am (UTC)It's the sort of thing that makes me long for philosopher-kings.
(no subject)
Date: 2004-09-29 11:02 am (UTC)Certain issues that happen to be mainly contested on the basis of religious beliefs. Y'know: Abortion. Gay marriage. The words "Under God" in the pledge. Scalia is sucking up to the people who argue that "activist judges" shouldn't be deciding such things. Because, after all, the country just went to hell in a handbasket when we made black people full citizens and let women vote and let interracial couples marry.
Note also that at no point in the article does Scalia mention the irony of saying that judges shouldn't decide the issue of assisted suicide, but that Ashcroft - functioning as a judge - has blocked the people's will on the subject in Oregon. Because, y'know, the judges are only immoral when they don't vote the way he would.
IOKIYAR
Date: 2004-09-29 11:05 am (UTC)(no subject)
Date: 2004-09-29 11:10 am (UTC)Fundamental moral issues shouldn't be decided by judges. The Supreme Court is supposed to decide issues based on the Constitution, not based on either their morality or on general public opinion. The problem is that our Constitution, even as good as it is and as successful as it has been, is deeply flawed. It is supposed to protect our rights as citizens, but some of our most important rights are not mentioned at all, and the escape hatch of the 10th Amendment utterly fails to clarify whether those rights that the Founders failed to address actually belong to the people (implying that the States have no right to take them away) or to the States (that they do). Further, much of the system it does spell out was designed for the world of 200 years ago and just doesn't make sense today. If the Court actually limited itself to what's written in the Constitution, it would be paralyzed. (Actually, it wouldn't have much to do at all, since judicial review is not a power actually written into the Constitution; it was made up out of whole cloth by John Marshall.)
The problem I have with "Justice" Scalia is not in his stated position that the Supreme Court should not act on the basis of their personal morality, it is the fact that his actual decisions on sensitive issues are based on his personal morality. Or so it seems to me; I am no expert on the man's opinions.
(no subject)
Date: 2004-09-29 11:55 am (UTC)The power was first assumed for our Supreme Court by Marshall. But he didn't invent the thing. Madison's notes indicate that judicial review was discussed at the Constitutional Convention.
(no subject)
Date: 2004-09-29 03:34 pm (UTC)(no subject)
Date: 2004-09-29 04:14 pm (UTC)Probably a matter of semantics. When considering the phrase, "it was made up out of whole cloth by John Marshall", it doesn't seem irrelevant to me. That makes it sound like he made up something from scratch, that never existed before, which isn't really true.
The concept was already established, and had been discussed. Given the documentation of the Constitutional Convention, it is possible to make a decent argument that there's no trace of the idea in the document because the authors expected it to simply be understood. One can also reasonably argue that the authors didn't include it merely because they didn't think the legislature would ever pass a law that was outside their allowed bounds.
Either way, it wasn't so much that Marshall made it up out of whole cloth. More like he was the first one to assemble this particular attrative ensemble from items off the rack. He still comes off as our judiciary's Beau Brummel :)
(no subject)
Date: 2004-09-30 12:05 am (UTC)-- Article III Section 1 of the Constitution
Marshall made nothing up. Judicial review of the Constitutionality of a law is part and parcel of what "the judicial power of the United States" is.
(no subject)
Date: 2004-09-30 11:39 am (UTC)(no subject)
Date: 2004-09-30 11:26 pm (UTC)(no subject)
Date: 2004-09-29 11:59 am (UTC)In this case, the Act allows teh FBI to requisition records from businesses without proving need to a judge first. The court has called this a big no-no.
(no subject)
Date: 2004-09-29 12:59 pm (UTC)Scalia is, like any successful lawyer or jurist, a master of rhetoric, and he can make a convincing argument for any damn thing. The Scaly One takes a not-unreasonable position in that speech. It's a political stance rather than something Ole Scaly believes, however. He's been perfectly willing to participate in moral decisions on other issues; he would just prefer that issues like abortion and gay marriage stay deadlocked in the Congress.
Sorry, But Here Comes A Rant
Date: 2004-09-30 05:38 am (UTC)I am sick to fuckin' death of hearing about morals, yet another word that has been co-opted, in this case to mean whether or not you're godly enough -- or, to be specific, evangelical Christian enough. What the hell ever happened to its original meaning, which is precisely the same as that of ethics, i.e., motivation based on ideas of right and wrong?
See, I've got this loony notion that our country is based on life, liberty, and the pursuit of happiness. Why? Oh, because it was in the damn Declaration of Independence. Why is that a problem? Because the religious nutbars who want to control every aspect of our lives because they believe it will make the world more pleasing to their god focus on death, stifling every human impulse, and suffering.
I'm serious.
This world sucks -- it's the next world, after you die, that matters. And you can be a lout, a brute, an evil son of a bitch up until the last second; if you renounce it all and accept God with your dying breath, why, then, you're in the club. We'll look the other way.
But it's moral to harrass, attack, outlaw, even kill people who want to love each other in a way proscribed by the church. (Which brings us back to the whole question of how the Missionary Position came about, but I'll let that pass.) Or people who have become pregnant and don't want the baby. Or people who are not in the same church, no matter how good and noble their lives have been. Or, or, or.
Your body -- you know, your frickin' interface to the world? Your sex drive -- the incredible two-part tango combining, in varying proportions, the species' instinct to purpetuate itself with the need for affection and physical contact? Your need to urinate and defecate, to rid the body of poisons? Your instinct to play, to have fun, to experiment, to learn? Seeing certain bodily parts unclothed? All temptations of the flesh, weaknesses of the soul, distracting you from the glories of God. God wants people to work, wants women to suffer in childbirth and be declared sinners for getting pregnant in the first place -- not very condusive to building a worshipper base, I'd think -- and if you don't pay enough attention to Him, He's got a history of smiting. And keep yer damn bodily functions to yourself.
Suffering? If you don't toe the line, God condemns you to unspeakable torture, forever, after you're dead. And, of course, there's JC, who suffered, suffered, suffered. (Please note that I am not getting into any debate over the nature or existence of Jesus Christ on this point. It is, as usual, about his most fanatical "worshippers", the ones who violate virtually every tenet of his teachings in their zealotry.)
I'm just sick of it, y'know? Is doing the right thing so very hard? Is it so hard to see that maybe, just maybe, preserving everyone's rights, so long as they hurt no one and interfere with no one else's privacy, is in everyone's interest? Are there no extenuating circumstances? Might not a woman without a good job and in poor health, who was raped and became pregnant, decide not to have a child for any of those reasons -- or might a woman with a good job, in excellent health, who wanted to enjoy one of the finest features of the human body, decide not to have a child for similar reasons? Can't a sick person who will never get better decide that ending their life quickly, with dignity and a minimum of pain, is vastly preferable to lingering, suffering, possibly burdening his or her family? Can't two guys or two gals -- hell, two guys and two gals, or any other combination you like -- be free to choose their own lovemates, and use the resources our legal system has developed to protect and promote families?
Is their God so small, that He can't see that?
Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 06:01 am (UTC)Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 06:05 am (UTC)Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 06:33 am (UTC)Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 06:45 am (UTC)Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 07:01 am (UTC)Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 07:19 am (UTC)Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 06:43 am (UTC)Kind of like all relationships, huh? Come to think on it, all of the poly relationships that I've known in RL have been polyandrous, rather than polygynous. Hmmm... On the theory that we are all big girls and boys that can take care of ourselves, and as long as all parties agree, I see no problem with it at all. The same rules that apply to monogamous het relationships should apply if it's somehow coerced (religiously or otherwise) - that is, throw the book at 'em.
An it harm none...
Re: Sorry, But Here Comes A Rant
Date: 2004-09-30 06:48 am (UTC)Yeah, but
Date: 2004-09-30 06:52 am (UTC)Maybe the problem is the whole concept of marriage itself, except that lots of people, including the aforementioned gay couples, feel it is valuable.
Re: Yeah, but
Date: 2004-09-30 07:17 am (UTC)Like I say, I think the problem is the combining of the two aspects of marriage -- the civil union that gives social acknowledgement and legal protections and benefits, and the religious ceremony that makes them married in the eyes of their god.
Easiest example I can think of: a Muslim couple is not married in the Catholic Church... but they are still married legally. If one spouse tries to get the other on his or her insurance, no one is going to say -- no one is permitted to say -- "I'm sorry, you're not really married, because it wasn't Catholic."
I understand that many evangelicals don't want to promote what they consider amoral and hedonistic lifestyles with their tax dollars. To which I could rattle off dozens of examples of things those dollars do promote that the fundies don't blink at. But I suspect the vast majority of gays and polys who want to get married don't want to do so under the auspices of a fundamentalist church, which is why I think the fundies should butt out. It ain't their business. And they can't seem to understand that.
To tie it back into the original post, Scalia has a history (http://members.aol.com/schwenkler/scalia/) of getting moralistic (http://www.philly.com/mld/inquirer/news/nation/6340432.htm?1c) and even huffy (http://www.refuseandresist.org/police_state/art.php?aid=929) when making a judgment about something he doesn't like. Problem is, his job is to interpret the law. Not the morality, the law. And protecting people's rights is, I thought, the point of the legal system.
Re: Yeah, but
Date: 2004-09-30 07:53 am (UTC)Re: Yeah, but
Date: 2004-09-30 08:05 am (UTC)To me, the basic problem with the entire thing is that the fundies can't get it through their heads that, at least as it stands now (and may it ever be so), when you apply for insurance or a joint bank account or file a joint tax return or ask for an invitation for you and your spouse to a social event, no one asks if you got married in the Cathedral at Chartres by the Pope himself, in a Vegas drive-thru by an Elvis impersonator, on the deck of the S.S. Minnow by the Skipper, or in a function room at ConFusion by Lady Sarah who, along with running the Chocolate Ritual, is empowered to perform legal weddings.
It doesn't matter. You're married. Technically, no wedding has to be graced by any church.
But that leads into a whole 'nother conversation about churches trying to save their existences.
Re: Yeah, but
Date: 2004-09-30 08:29 am (UTC)This discussion has strayed far and wide, but I thank you for a thought-provoking conversation and the chance to bat some ideas around.
Re: Yeah, but
Date: 2004-09-30 08:42 am (UTC)Re: Yeah, but
Date: 2004-09-30 10:10 am (UTC)Seems an obvious answer to me, but then I believe religion has no business in government...
Re: Yeah, but
Date: 2004-09-30 10:24 am (UTC)Re: Yeah, but
Date: 2004-09-30 10:41 am (UTC)Re: Yeah, but
Date: 2004-09-30 11:02 am (UTC)By the way, congrats on over 22 years together...my love and I just celebrated out 17th September 5th. Our motto is simple:
Divorce? Never.
Murder, on the other hand..... :P