The Libertarian Podcast: “Remembering Antonin Scalia”
Scalia Would Have Wanted the States to Use the Article V Amendment Power Responsibly
By Paulette Rakestraw and Mead Treadwell
A month ago, the editorial board of USA Today issued a warning urging the states to resist the call by Sen. Marco Rubio for a “constitutional convention” to draft amendments to balance the federal budget and impose term limits on judges and members of Congress. As the two current commissioners of the Compact for a Balanced Budget, we agree with the editorial board (and its reference to remarks that the late Justice Antonin Scalia had given years ago): a “constitutional convention” conducted outside the scope of Article V of the US Constitution would be inappropriate.
But there’s a big difference between conducting a constitutional convention of the kind that took place in Philadelphia in 1787 versus offering a single amendment as provided for in Article V. Currently, Congress can propose a constitutional amendment when two-thirds of both the House and Senate approve it. And the states can propose an amendment too, when at least two-thirds of them (34) submit a common application to Congress that details the amendment to be proposed. Once Congress receives the completed application, it is then required to call a convention where the states will formally consider the amendment. The vote of a majority of states at this convention would send the proposed amendment out for ratification, which requires the approval of three-quarters of state legislatures (38).
Antonin Scalia, a Most Memorable Friend
The sudden death of Justice Antonin Scalia has elicited many tributes about his achievements. It has also sparked extensive reviews of his judicial body of work—and raised some questions about how filling his spot will affect the 2016 presidential election and the future direction of the Supreme Court. Like many others, I shall have more to say about these weighty issues going forward. But for now, I’d like to write about some of my personal interactions with Justice Scalia prior to his appointment to the Court in 1986.
Scalia graduated in the exceptional Harvard Law School class of 1960 along with the late David Currie, for many years my colleague at University of Chicago Law School. Currie helped arrange for Scalia to interview for a potential faculty position at the University of Chicago in early 1977. By that point, the election of Jimmy Carter as President had ended Scalia’s term as head of the Department of Justice’s Office of Legal Counsel, to which Gerald Ford had appointed him in August 1974.
When Scalia appeared for his Chicago job talk, he cut a large figure. The topic of the session was executive privilege vis-à-vis the Congress, an issue on which Scalia had sparred with Congress repeatedly as head of OLC. For Scalia, there was no middle ground on this question. He was a passionate and articulate defender of executive privilege, and noted, correctly in my view, that this was an issue that was not defined by party, but by role. Repeatedly, he stressed that every president of both parties had taken this view, which he thought that the constitutional system of separation of powers required.
I confess I am pleasantly surprised at the strong stand GOP senators are making against confirming any Obama appointment to replace Justice Scalia. Perhaps after all the sturm und drang of the Harriet Meyers nomination, GOP officials finally are getting trained to behave like actual conservatives regarding court appointments. If so, it raises again the […]
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I have to say I am a bit heartbroken over Scalia’s passing. Antonin Scalia was a personal hero of mine. As an Italian-American and a conservative and a Catholic I was so proud of him. It is my perception that until Scalia hit the national scene, Italian-Americans and Catholics were predominantly center-left on the political […]
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I have a few observations on the impact of the death of Justice Scalia. I welcome your comments on them. I am saddened that I was correct in predicting that the Left would engage in a vengeful grave dancing orgy over Justice Scalia’s death. Whether they realize it or not, their reaction is a stain […]
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Rest in Peace, Justice Scalia
This has to be the case. People to the right of center have had a shock today and the dalliance with Trump will slow down now, I think. This great man’s passing will cause discussions among friends and family that will make the Trump supporters to be more realistic about actual rather than possible events. […]
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Mr. Justice Antonin Scalia, RIP
Thirty years ago, our own John Yoo once explained to me, not a single major law school considered “original meaning” a valid approach to the Constitution. Today, no law school can be considered serious unless it has a number of originalists on its faculty. What caused this change? One man: Antonin Scalia.
Rush Finally Turns on Trump
Millions of conservatives have listened to Rush Limbaugh since his syndicated show first appeared on their AM dials. For more than a quarter century, the mighty El Rushbo has argued passionately for Constitutional principles from behind his golden EIB microphone, eviscerating liberals and also weak-kneed establishment squishes who deviated from the small government mantra of classic Republicanism.
Which is why so many conservatives have been bewildered by Maha-Rushi’s months of fulsome praise for the pro-gun control, pro-choice, pro-universal healthcare, Clinton-donating, eminent domain-abusing, Republican-as-of-last-Tuesday Donald Trump. Rush has always loved sticking it to the GOP establishment, but selling a literal RINO like Trump to his loyal listeners seemed distinctly out of character.
However, The Donald’s recent attacks on Senator Ted Cruz have finally prompted the nation’s most popular talk show host to give his Palm Beach neighbor a stinging brushback pitch. Over the weekend, Chris Wallace asked Donald Trump what he thought of Ted Cruz. Trump responded:
Festival of Smugness
There are few more repugnant spectacles among the liberal elites of this country than the festivals of smugness that follow any comment by a conservative public figure that can be twisted into a racial slight.
This week it is Justice Antonin Scalia’s turn. In an oral argument over affirmative action, Scalia said:
There are those who contend that it does not benefit African-Americans to — to get them in the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less — a slower track school where they do well.
Distortion in Service of Progressivism Is No Vice
It’s as fascinating as it is frustrating to watch the media spin a story to suit its preferred narrative. For this week’s example, look no further than the controversy surrounding oral arguments in Fisher v. University of Texas, the latest affirmative action case to reach the Supreme Court of the United States.
An MSNBC reporter named Irin Carmon — who also co-authored a laudatory biography of Justice Ruth Bader Ginsburg entitled The Notorious RBG — seized on a question raised by Justice Antonin Scalia during oral arguments. The question dealt with the assertion (raised by one of the briefs) that promising students from poor or minority schools would generally be better served by attending good-but-non-prestigious colleges than elite schools through affirmative action. In other words, these students face a more daunting adjustment than either they or the colleges realize, which unnecessarily dooms them to failure at prestigious schools when they would likely have prospered at other schools. There has been legitimate research into this idea that dates back over a decade.
That context was absent from a tweet Carmon sent out, and the response via social media has been sadly predictable:
Scalia’s Dissent in Lawrence vs Texas
Justice Antonin Scalia’s dissent in Lawrence v. Texas was prescient in its analysis of where we were headed in a post-Lawrence world. Likewise, the reaction to last Friday’s Obergefell decision has included warnings from both the dissenters and numerous commentators that the fallout from the case could mean serious legal challenges to religious institutions and/or the necessary discovery of a constitutional right to polygamy or prostitution.
Naturally, progressives scoff (at least on the record) at such suggestions, even as we begin to see a few commentaries pop-up that make those very arguments.
To most on the Left, these are the desperate ramblings of scare-mongers who are trying to cling to the most absurd arguments still available to them in this rapidly changing world. “Pay these claims no mind,” they say. “This is just slippery-slope nonsense.” They usually then tack on a strawman about how conservatives think people will start marrying their dogs or some such thing.
SCOTUS and the Age of the Imperial Judiciary
In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process? Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.
Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.
Mr. Justice Scalia Dissents
Mr. Justice Scalia, dissenting:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Half a Win on Supreme Court’s Affirmative Action Ruling — John Yoo
Most conservatives were probably happy with the news of yesterday’s Supreme Court decision in Schuette v. BAMN, which upheld Michigan’s state constitutional ban on affirmative action. The plurality opinion, however, should curb their enthusiasm.
Written by Justice Anthony Kennedy and joined by Chief Justice Roberts and Justice Alito, the plurality treated the case not as one about a color-blind Constitution, but as a political process issue. They essentially reduced the question to whether Michigan was within its rights to enact the ban through a ballot initiative. They found that it was — but suggested that a state could also legitimately use the exact same process to reach the opposite outcome.
This week on Law Talk, professors Yoo and Epstein (presided over by Troy Senik) banter about Wisconsin’s collective bargaining law being overturned, the future of public-sector workers, and the Posner-Scalia feud. Then they wrap it all up by refereeing a Member Feed fight on the constitutionality of secession.
