Tuesday, June 22, 2010

Scalia!

Ilion just posted a link to Scalia giving a speech at a school.

I like Scalia. When I wanted to be a lawyer, he was a model for me to follow.

Here's the depressing thing: Most of Scalia's best, brightest work is in his dissents:

Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.

Which, oddly enough, is why I'm somewhat unimpressed by Thomas Sowell's stern warnings about the US's possible descent into tyranny. Quoting Sowell:

If our laws and our institutions determine that BP ought to pay $20 billion — or $50 billion or $100 billion — then so be it.

But the Constitution says that private property is not to be confiscated by the government without "due process of law."

Technically, it has not been confiscated by Barack Obama, but that is a distinction without a difference.

To which I can only say: And the lawyers and judges will start to debate what counts as due process. Just as they'll debate what our laws 'really' mean, what purposes our institutions 'really' serve.

Which means that Sowell's appeal to such things is, sadly, flawed. "Laws and institutions" are things in the hands of men, and if the men handling them have poor character or moral fiber (Is there really such a thing, sniffs a nearby academic), they won't be of much help.

After all, Sowell is referencing Hitler's rise to power. But Hitler's rise had a lot to do with - surprise - manipulating those 'laws and institutions', and relying on others' manipulation of them. In fact, my history classes taught that Hitler's Beer Hall Putzsch landed him with a rather short jail sentence, and that when Hitler finally achieved power he mostly left the judicial branch alone. Why? The explanation* was that the judicial branch was largely sympathetic to Hitler's stated aims anyway.

I think Obama is a schmuck, but I will not pretend that the problems of government started with this current administration. These are just the latest machinations of a sickness that's been growing for a long, long time.

(* Mind you, my teacher - like all teachers - could have been full of manure.)

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