Man Cannot Live on Bread Alone
Current Democratic Presidential nominee Barack Obama may have graduated from Harvard and taught at the University of Chicago as did U.S. Supreme Court Justice Antonin Scalia, but the similarities end there. Recently, on the 221st anniversary of the U.S. Constitution's adoption, in an article written by Abdon M. Pallasch, Scalia Says U. of C. Has Gone Liberal. Justice Scalia spoke to a roomful of conservative lawyers, The Federalist Society. He accused the University of Chicago of 'going liberal,' and in effect, 'losing its edge' (17 Sept. 2008. ).Scalia had taken what he felt were more 'bread-and-butter' classes instead of popular classes such as Current Issues in Racism and the Law, taught by Obama. Scalia felt that the courses offered were no longer as rigorous, and the philosophy no longer conservative. In fact, he not only laughed as he mentioned Law and Poverty, he also lamented the contemporary courses and called them exotic, made-up, and a waste of time. Despite the University of Law School's consistent rank as one of the nation's top five or 10 in national surveys, he admitted he would not recommend that school to future law students. Scalia was considered by Republican presidential nominee John McCain as well as President Bush to be a "strict constructionalist" who "does not legislate from the bench." As a justice who strictly adhered to the text of the U.S. Constitution, he accused his fellow justices of rewriting the Constitution with contemporary decisions on abortion, gay rights. He did admit, however, that despite his studies, he was no more qualified than Joe six-pack to determine whether or not these rights should exist. While Scalia was questioning his qualifications to determine what our Constitutional rights were, some four floors down at the Chicago Union League Club, a less conservative group, Constitutional Rights Foundation Chicago, did not seem to have this difficulty. They chose to celebrate the U.S. Constitution's anniversary by presenting awards to Chicago lawyers who represented accused enemy combatants who were detained without probable cause; Habeas corpus had been suspended, and no due process hearings had been given. Eighty-six percent of these detainees were picked up by Pakistani forces, not U.S. forces, but with a tempting U.S. $5,000 bounty dangling over their head. In many cases no evidence of crime found, yet basic Constitutional rights were not recognized by the Bush administration and had to be forced by the Supreme Court. In a 5-4 decision, Boumediene v. Bush, 128 S.Ct. 2229 (2008) the Court decided that the detainees were protected by the U.S. Constitution's habeas corpus protections.The Federalist Society is an organization that was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. The fact that The Federalist Society, like Scalia, a Federalist affiliate, advocates a more conservative approach to interpret the law is ironic. The original Federalists, our Forefathers, feared people like Scalia. While impossible to enumerate all possible rights of the People in the Bill of Rights, enumerating only a few would grant too much power to those who felt it was their inalienable right to deny rights not numerated to moralize the majority with their own beliefs. Alexander Hamilton said it best in Federalist paper 84, when he asked, "Why declare that things shall not be done which there is no power to do?" Is it not the "power to do" our inalienable right? In his own defense, Scalia has said, "A Bill of Rights that means what the majority wants it to mean is worthless." Apparently, that is when Scalia is not in the majority opinion. Labeled a judicial activist by Obama, he freely voices his personal opinions, and stare decisis--deeply rooted in tradition and implied in Article III of the Constitution--has little value for him unless it mimics his own judicial philosophy, a clear contradiction of originalist philosophy. For example, in Planned Parenthood v. Casey, 505 U.S. 833, 850-51 (1992), he concluded that a woman's decision to abort her unborn child is not a constitutionally protected "liberty" because (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed. Another example is Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989), when Justice O'Conner asserted that a "'fundamental rule of judicial restraint" requires us to avoid reconsidering Roe, he stated her opinion "could not be taken seriously." In fact, the article fails to mention many important aspects of Scalia's philosophies, opinions and positions on important Constitutional issues. First of all, Scalia disagrees with the McCain and Bush label given him; that he is a 'strict constructionalist who does not legislate from the bench.' According to Linda R. Monk in, The Words We Live By-Your Annotated Guide to the Constitution (95), President Jefferson--a true strict constructionist--believed "that judges should limit themselves to narrow interpretations of the Constitutional text and avoid enlarging the powers of government." Scalia, on the other hand, believes Constitution text and the Bill of Rights should limit the powers of the People, not the government. Resisting the Bush-McCain label, he hides behind his own labels of himself as a 'textualist' or 'originalist' who does not rely on the intent of the framers, nor does he believe the Constitution is an evolving document (Id. at 96) and is judiciously proscribing in a time warp as customs and traditions evolve through time.The article also mentioned that Scalia felt studying poverty law was a "waste of time" and "made up." This outrageous Scalia viewpoint is not surprising. In a similar meeting in 2004, while speaking to a hotel ballroom full of lawyers, he attacked some of the most important Supreme Court decisions of the last 40 years: The court was wrong, to say the Constitution requires that lawyers be provided to poor people accused of crimes. We have now determined that liberties exist under the federal Constitution -- the right to abortion, the right to homosexual sodomy -- which were so little rooted in the traditions of the American people that they were criminal for 200 years.'' (Liptak, Adam. In Re Scalia the Outspoken v. Scalia the Reserved. N.Y.Times. 2 May 2004. ).This was not the first time Scalia has made outrageous comments to the Federalist Society. When speaking to them on Valentine's Day in 2006, there was no love lost from his critics when he criticized advocates of a "living Constitution," calling them "idiots." (Scalia Blasts Advocates of 'Living Constitution.' Associated Press. 14 Feb, 2006 ). It begs the question; could Scalia's belief in the Constitution as a document fixed in time not be construed as a personal opinion and thereby affect his judgment? Our Constitution is both the oldest as well as the shortest in history, and was meant to be a living breathing document that adjusted for all times because there was no way our Founding Fathers could prepare on parchment paper all future issues that could affect our liberty rights. Certainly it can be inferred, for example, if our framers believed in an originalist concept such as Scalia's, that 'pesky' Bill of Rights would not exist, and Scalia is, therefore, a proud supporter of slavery.On the other hand, when Obama instructed law students at the University of Chicago, one of his more traditional courses was in the due process and equal protection areas of Constitutional law. In this class, he challenged Scalia's views, and stated that "the Court never explicitly embraced Justice Scalia's 'cramped' approach to defining the scope of rights protected under the substantive Due Process." Apparently, Scalia's definition of a due process right depends on how far into the notion of tradition he is willing to go. (Obama, Barack. Students in Con. Law III. Final Exam Answer Memo. 1996. < http://miniurl.com//42>).Obama analogizes this point: If we following this notion of over 200 years of deeply rooted American traditions, when the Bill of Rights was created, our forefathers could not have dreamed of whether or not cloning or in vitro are procreation rights under the due process clause, but does that give the Court the right to criminalize it? In vitro is not "deeply rooted in the Nation's history and traditions," and does not follow traditional notions of procreation, but is legal. Following Scalia's cramped approach; these rights should not exist, and contradict current law. Id.There are other contradictions in the article that Obama debated in his Constitutional law class. Homosexual sodomy does not follow traditional notions of family, marriage, and procreation, therefore, it is criminalized, yet heterosexual sodomy is not. Id. See: Bowers v. Hardwick, 760 F.2d 1202, (11th Cir. 1985) Both do not follow traditional notions of family, marriage, and procreation, thereby legalizing the criminality and discrimination of sodomy homosexuality, yet holding judgment for heterosexual sodomy. See: Watkins v. U.S. Army, 847 F.2d 1329 (9th Cir. 1998). Obama further mentions Romer v. Evans, 517 U.S. 620 (1996) where Justice Scalia, in his dissenting opinion in Bowers defends the belief that moral opposition alone rationalizes laws that express disapproval of homosexuality, since they are legally criminalized. Justice Scalia's view of public morality as a legitimate government interest would, by contrast, clearly justify Bowers-style laws. Id.The article also fails to mention that Scalia was one of the Supreme Court justices who dissented in the Boumediene v. Bush decision. This landmark decision overturned Bush administration policy as well as two acts of Congress, ruling that the Military Commission Act (MCA) suspending habeas corpus to the detainees was unconstitutional, and against the Geneva Conventions. Despite this, as well as the fact that many of the detainees were farmers and goat herders, not militants, Scalia warned, "The nation will live to regret what the court has done today." Republican Presidential candidate, John McCain thought so too. However, Democratic Presidential candidate, Barack Obama applauded the ruling, saying it was a repudiation of "yet another failed policy supported by John McCain."
The article also mentions Scalia's mocking University of Chicago's 'waste of time' course offerings, yet there are both former students as well as legal scholars who disagree. John C. Eastman, a former clerk to Justice Clarence Thomas found the Current Issues in Racism and the Law course particularly instructive:Professor Obama was leading his students in an honest assessment of competing views regarding some of the most difficult legal and policy issues our nation has ever faced--a refreshing change from what passes for debate about contested questions in our political classes these days. Only occasionally do then-Professor Obama's decidedly personal views come across. He refers to Justice Scalia's approach to assessing fundamental rights as "cramped," for example. But on the whole, this is a body of course materials that is as would be expected of Chicago Law Professors. (Kantor, Jodi. Inside Professor Obama's Classroom. The N.Y. Times. 30 July 2008. ).Although some label Obama's students as 'groupies,' John K. Wilson, one of Obama's students who took his course Race, Racism, and the Law, and author of, Barack Obama: This Improbable Quest, (Paradigm Publishers, Oct. 2007) has observed "the appeal of Obama, more than any other professor, was his ability to listen to different points of views in a serious way, and yet still move students in the direction of understanding the law." He also felt that, "Obama probably learned a great deal from recognizing the flaws of his colleagues rather than swallowing their ideas wholesale. Obama embodies the University of Chicago ethic of asking 'What's your evidence?' far better than most Chicago professors. As someone who was out in the trenches, he never accepted the ivory tower theorizing as superior to the facts on the ground." (The Times Distorted Professor Obama. Huffington Post. 30 July 2008. ).Finally, Scalia also mocks the study of poverty, calling it 'made up' and a 'waste of time.' Unfortunately, since the creation of the Constitution, the criminalization of poverty has increased without the acknowledgement or sympathy of many elite members of our society, but since when is poverty 'made up'? Since when is poverty not considered a 'serious' subject? Since when is studying poverty a 'waste of time'? Since when has poverty been considered 'exotic'? In his dissent in Bowers v. Hardwick, 478 U.S. 186 (1986) Scalia argued that, "This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected…" We have 37 million living in poverty in American--hardly what one could call exotic or made up. Could it be that his 'elitism' has blinded him to the plight of the large numbers of poor American? Perhaps some of the vast differences between Obama's and Scalia's Constitutional opinion are because Obama was a Constitutional lawyer, and Scalia taught Administrative law. However, Scalia cannot pick and choose which parts of the Constitution he wants to uphold. It is said, "Man can not live on bread alone." Perhaps Scalia should have added 'a little meat' to his 'bread and butter' classes. Perhaps he should have listened to the majority opinion of his colleagues, Justices O'Connor, Kennedy and Souter in Planned Parenthood v. Casey, 505 U.S. 833, 850-51 (1992) when they stated: "Our obligation is to define the liberty of all, not to mandate our own moral code." The Constitution is a living breathing document, capable of adapting to social construct while still maintaining its original purpose. There are rights in the Constitution which do not yet exist. As a dormant seed they await the right time for discovery. These rights are simply within the framework of the document. But where the powers are not explicit; then the power belongs not to Scalia, but to The People.
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