Scalia's mistake

3rd-rate minds are only happy when they are thinking with the majority. 2nd-rate minds are only happy when they are thinking with the minority. 1st-rate minds are only happy when they are thinking.

-- A.A. Miln (the author of Winnie the Pooh)

An exchange on Facebook:

UCS shared a link.

Scalia appeals to duel federalism in support of his case that some of the more controversial issues currently argued over at the Federal level are easy to deal with from a Supreme Court perspective. He argues they are matters to be dealt with by the individual states.

Scalia says abortion, gay rights are easy cases

Justice Antonin Scalia says his method of interpreting the Constitution makes some of the most hotly disputed issues that come before the Supreme Court among the easiest to resolve.

Comments:

AC:

Scalia lives in this funny universe, where:

1) rights are created by the governments, no received naturally, at birth;
2) constitution must be defended, except when it comes to Justice Scalia's pet topics, inspired by his Catholic background (marijuana, gay rights, abortion, etc.); in those cases it's ok to use the same methods that his friends Ginzburg and Breyer use to defend their pet projects.

U:

A, are you familiar with duel federalism?


AC:

I am familiar with the concept. Doesn't mean I like it (although it's obviously better than centralized power that Vladimir Put... I mean, Barack Obama would have). Doesn't mean I don't think that Scalia is a hypocrite.

The constitution has recognized people's natural rights. Just because the drafters and their contemporaries were hypocrites doesn't mean we have to follow their lead.

Look up Lysander Spooner's argument that slavery was unconstitutional (even before the 13th Amendment). E.g.: http://medicolegal.tripod.com/spooneruos.htm

U:

It is a matter of who you want to 'define' your rights. In order to 'protect' your rights, they must be defined. We reject the incorporation doctrine, not because we think States should violate the rights of individuals, but because we don't trust a centralized power to be able to define our rights.

It is a curious position to distrust the federal government, but then want to use it to protect rights.

Also, do you agree that people disagree on what constitutes a right?

Why shouldn't this be left to local governing bodies?

Leaving it to local governments doesn't mean you condone any abuse of rights that may occur on the local level, it just means you don't trust a centralized power to be the arbiter of your rights.

A:

Who should define what the word 'ostrich' means? Why shouldn't this left to the governing bodies? A better question is: why should it?

To leave anything to any kind of government, an institution founded on the concept of violence (of either majority at the hands of minority or vice versa), means to invite violence.

Why would you want something as precious as understanding and definition of our natural rights (the concept that binds us into a society) be left to a monopoly organization, however local? Obviously, it should be left to the people themselves -- and competing (on a free market) private legal authorities who codify the 'will of the people'.

U:

If you are an anarchist it is even more of a curious position to want a central government to be the arbiter of your rights.

A:

Obviously, I don't want the central gov't to be the arbiter.

My point was not that in an argument of how often to rape people -- once a week or once a month -- the first argument is right. My point was that rape is wrong.

The whole premise that natural rights need to be 'defined' by some governing body is wrong from the start. Natural rights need to be discovered and recognized. This is what Scalia is missing.

The question of which social mechanism is best for efficient and precise rights discovery (central gov't vs. local gov'ts vs. private 'authorities') is secondary (and, to some extent, not so much a legal or a political question, but an economic one).

So, when Texas says that sodomy should be illegal, Scalia finds nothing wrong with it. For Scalia, this is how Texas has 'defined' the right of having sex: 'as long as it's between a man and a woman'. But I say: in their (presumed) attempt at rights discovery, Texas made a mistake. Of course, I agree with Scalia that when the central gov't tells Texas that, the situation becomes even more dangerous in the long run.

Anyway, in my personal life, my rights are violated much more by the state I live in than by the federal gov't.