It includes some criticism he’s gotten from Heller:
As it happens, itâ€™s not only some Democrats who view Scalia as a constitutional hypocrite: many prominent independent and Republican judges and scholars have also criticized him for ignoring the original understanding of the Constitution in the cases he cares most passionately about. As Biskupic points out, Judge Richard Posner has derided Scaliaâ€™s constitutional history in the gun case as â€œfaux originalism,â€ and Judge J. Harvie Wilkinson has compared Scaliaâ€™s gun opinion to Roe v. Wade for its refusal to defer to the political branches.
Posner’s knowledge of the scholarship that has surrounded the Second Amendment recently leaves much to be desired, and one wonders whether Harvie Wilkinson has read the Congressional briefs in Heller and McDonald, where a substantial majority of the “political branches” came down in favor of an individual rights view of the Second Amendment. Unless by “political branches” Judge Wilkinson means DC City Council, the City of New York and the City of Chicago? Maybe the reason Scalia hasn’t responded to these critics because their arguments are so shallow as to not be worth responding to?
5 thoughts on “Article on Scalia in the New York Times”
Save me from police state Republicans. They’re happy to ignore the text and original public understanding when it gets in the way…
Sebastian, I find your support of Scalia incredible. Isn’t his involvement with “executive privilege” and support of warrantless wiretapping as “â€œa practical necessityâ€ enough to relegate him to the scrap heap of bad politicians. I’d think you’d be the first one to say so.
I’m afraid you and many of your friends are blinded by the gun debate. Scalia wrote the Heller decision, that’s enough for you guys.
As far as hypocrisy goes, one need look no further than Raich v Ashcroft to find Scalia inserting his personal biases into his interpretation of the Constitution.
His blind support of the War on (Some) Drugs led him to decide that a substance:
– For which zero money exchanged hands
– Which did not cross any state boundary
…suddenly became “interstate commerce”.
As an expansion of federal power into state laws, it’s almost unsurpassed. There is now literally NOTHING which cannot be interpreted as “interstate commerce” under that level of non-reasoning and interpretation of the Constitution.
I am not the biggest Scalia fan in the world, and there’s many things, I think, to criticize about his judicial philosophy, to the extent that he’s consistent with it.
I generally find when Scalia is right, he’s really right. I think his dissent in McConnell vs. FEC was masterful. I agree with him heartily that the non-delegation doctrine is out of control.
But then you have the Raich, where I was surprised at Scalia’s flip to uphold Wickard when he had a chance to overturn it.
In terms of Scalia’s support of executive privilege in the article, Mike, when you’re working as the executive’s lawyer, you will tend to do things like defend executive power. That’s the OCL’s job.
January 3rd, 2010 at 6:41 am
“Iâ€™m afraid you and many of your friends are blinded by the gun debate. Scalia wrote the Heller decision, thatâ€™s enough for you guys.”
If believing that BS makes you feel good Mikeb, keep on believing it.
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