Scalia dead

Chris · February 24, 2016, 8:40am

It’s a living document because it has a mechanism for amending.

yyy · February 24, 2016, 4:36pm

Btw I hope it’s clear that the d-word is how the man himself described his theory.

[quote=“http://www.nytimes.com/2016/02/18/opinion/resetting-the-post-scalia-supreme-court.html”]
About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.[/quote]
That article links to this one.

[quote=“http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html”]
For years, Justice Scalia liked to amuse himself and startle listeners by proclaiming that his Constitution wasn’t living, but “dead.” I heard this myself on several occasions. Recently, he’s softened his tone a bit to explain that by “dead” he doesn’t mean expired but rather “enduring” as opposed to “morphing” or “changing.” No matter. If Justice Scalia’s Constitution was a tree, it would be part of a petrified forest.[/quote]
And here’s a full article on mainstream Canadian opinions of the man and his views. theglobeandmail.com/news/nat … e28762762/

Winston_Smith · February 24, 2016, 9:48pm

Btw I hope it’s clear that the d-word is how the man himself described his theory.

[quote=“http://www.nytimes.com/2016/02/18/opinion/resetting-the-post-scalia-supreme-court.html”]
About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.[/quote]
That article links to this one.

[quote=“http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html”]
For years, Justice Scalia liked to amuse himself and startle listeners by proclaiming that his Constitution wasn’t living, but “dead.” I heard this myself on several occasions. [color=blue]Recently, he’s softened his tone a bit to explain that by “dead” he doesn’t mean expired but rather “enduring” as opposed to “morphing” or “changing.”[/color] No matter. If Justice Scalia’s Constitution was a tree, it would be part of a petrified forest.[/quote]
And here’s a full article on mainstream Canadian opinions of the man and his views. theglobeandmail.com/news/nat … e28762762/[/quote]

My guess is he was talking over their heads.

That strange “clarification” reminds me of the Mark Twain saying, which goes roughly like this: “When I was 17 I realized my father was the biggest fool on the face of the earth. By the time I reached 25 I was amazed at how much he had learned.”

[quote]I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors . . . it will be said it is easier to find faults than to amend the Constitution. I do not think . . . amendment so difficult as is pretended. Only lay down true principles, and adhere to them inflexibly.[/quote] – Thomas Jefferson

Neither Scalia, Thomas Jefferson nor myself believe(d) the Constitution shouldn’t evolve with the times. The disagreement is over how. Should it be at the hands of five unelected, unaccountable horticulturalists with lifetime tenure or by a super majority of elected representatives of the people exercising the “mechanism for amending.”

BrentGolf · February 25, 2016, 7:19am

And once again we circle back. It really does sound like you’re advocating for judges to be elected by the public and serve specified terms. If that was the system though, do you think it would be any different than now? If we voted on judges, don’t you think we’d be doing so based on our partisan views? Democrats would vote liberal judges and Republicans would vote conservative judges. What would be different?

yyy · February 25, 2016, 7:26am

[quote=“Winston Smith”][quote]I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors . . . it will be said it is easier to find faults than to amend the Constitution. I do not think . . . amendment so difficult as is pretended. Only lay down true principles, and adhere to them inflexibly.[/quote] – Thomas Jefferson

Neither Scalia, Thomas Jefferson nor myself believe(d) the Constitution shouldn’t evolve with the times. The disagreement is over how. Should it be at the hands of five unelected, unaccountable horticulturalists with lifetime tenure or by a super majority of elected representatives of the people exercising the “mechanism for amending.”[/quote]
That’s a nice Jefferson quote. But which democratic process is less cumbersome and less prone to being thwarted by a minority:
(A) amending the constitution via 2/3 majorities in both houses and simple majorities in 3/4 (38) of the states, or
(B) impeaching a judge via a simple majority in the lower house and a 2/3 majority in the upper house?

(Correct me if I’m wrong about the details.)

yyy · February 25, 2016, 8:41am

What would you say to [strike]further[/strike] restrictions on eligibility?

[quote=“http://www.usatoday.com/story/opinion/2015/07/01/california-doesnt-count-as-part-of-west-column/29523957/”]Scalia made his point via a swipe at his colleagues for being unrepresentative of the United States population (and thus wrong to impose their support for marriage equality on the entire country). After noting that all nine justices attended Harvard or Yale law schools and that only one grew up in the Midwest, he wrote that the court has “not a single Southwesterner or even, to tell the truth, a genuine Westerner.” What about Justice Anthony Kennedy, who is from Sacramento? Scalia’s answer came parenthetically: “California does not count.”

[…]

Despite the snappy California retorts, Scalia’s fundamental point went substantively unchallenged, because he’s right: California doesn’t fit in the American West. Or anywhere else, for that matter.
[/quote]

[quote=“https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Appointment_and_confirmation”]Because the Constitution sets no qualifications for service as a justice, a president may nominate anyone to serve, subject to Senate confirmation.
[/quote]
Whereas…

[quote=“https://en.wikipedia.org/wiki/Judicial_appointments_in_Canada#Supreme_Court_of_Canada”]Eligibility for the Supreme Court of Canada is set out in the Supreme Court Act. Judges of the court are made up of eight puisnes judges and the Chief Justice.[1] Candidates must have either been a judge of a superior court or a lawyer for at least ten years in their province’s bar.[2] Appointments are made by the Governor General of Canada on advice of the Prime Minister.[2]

Appointments to the Supreme Court of Canada are subject to the legal requirement that three judges must be appointed from Quebec. By convention, the other 6 are appointed from Ontario (3), Western Canada (2), and Atlantic Canada (1).[/quote]
So despite the legislature not being able to veto the Prime Minister’s choice, we have some degree of regional balance, and if I’m not mistaken, Obama would not qualify mutatis mutandis.

Also,

[quote]Judges in positions that are under federal control (federally appointed positions) are eligible to serve on the bench until age 75. In some but not all Provincial and Territorial positions, appointed judges have tenure until age 70 instead.

As for removal from the bench, judges have only rarely been removed from the bench in Canada. For federally appointed judges, it is the task of the Canadian Judicial Council to investigate complaints and allegations of misconduct on the part of federally appointed judges. The Council may recommend to the (federal) Minister of Justice that the judge be removed. To do so, the Minister must in turn get the approval of both the House of Commons and the Senate before a judge can be removed from office. (The rules for provincial/territorial judges are similar, but they can be removed by a provincial or territorial cabinet.)[5][/quote]
That would be a simple majority in each house if I’m not mistaken.

Winston_Smith · February 25, 2016, 2:20pm

It’s premature to talk about fixing the problem of legislation without representation in a democracy when there’s no consensus that it’s even a problem. Large swaths of the American public and several posters here think that the only real problem is making sure the right “activist” is appointed to the Supreme Politburo so it can get on with the business of issuing enlightened edicts unhampered by the sluggish and unreliable machinery of democratic processes.

yyy · February 25, 2016, 3:20pm