Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.
Scalia cited numerous issues that have been thrown to the courts — a woman’s right to an abortion, society’s right to execute someone for a crime, whether “homosexual sodomy” ought to be allowed — and claimed that judges are unqualified to answer them. Medical doctors, engineers, ethicists and even “Joe Six Pack” would be just as qualified as a legal professional to settle some issues that have come before the high court.
In other words, if the Supreme Court rules against the wishes of “Joe Six Pack” that executions constitute cruel and unusual punishment or that gays and lesbians have the constitutional right to equal treatment with their heterosexual fellow citizens, we’re obviously well on our way to Nazi Germany.
On the other hand, here’s an actual expert ”on the role of German courts during the period leading up to and during Adolf Hitler’s regime”:
A United States Holocaust Memorial Museum historian told an audience today at the Supreme Court of Ohio that pre-World War II German courts set the stage for Nazi atrocities by falling for promises of restoring order, professionalism and judges’ authority.
Even when the number of political prisoners held by the Ministry of Justice increased from 35,000 to 150,000 in the 1930s, Meinecke said the situation looked normal to jurists. “Jurists had no interest in questioning the legitimacy of the Nazi state, because it saved them from the abyss,” he said. “The court was afraid of being irrelevant.”
In his research, Meinecke said he uncovered one sitting judge who challenged Nazi practices. The judge, who objected to a secret killing program of mentally and physically disabled people, was removed from office. Another judge, who refused to take an oath to Hitler resulting in unlimited power, resigned from office. Neither judge was arrested. Other officials with objections were transferred to distant posts with little meaning and little power.
Slowly, Hitler remade the judiciary step-by-step in his own image. “He used the rules of democracy to destroy democracy,” Meinecke said. Jurists, obviously, couldn’t see where all this was headed and called the changes minor because they didn’t affect nonpartisan jurists, only Jews or those politically active, he said.
To me, this doesn’t sound quite like what Scalia has in mind when he talks about judicial activism on issues that ought to be left to the citizenry. Of course, Josef Sechserpack and the citizenry in Germany voted the Nazis into power in 1933, effectively making Hitler the German Chancellor … an inconvenient fact that Scalia omits from his lecture.
But, hey, whatever, right?
Scalia’s Amazing Dissent
Justice Antonin Scalia’s dissent in United States v. Windsor today reads like it was written by someone who didn’t know what the ruling would be in yesterday’s Shelby County, Alabama v. Holder case.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this Case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives.
This is, of course, exactly what the majority opinion in Shelby County decided to do, striking as unconstitutional Section 4 of the Voting Rights Act. Justice Scalia, of course, voted with the majority in Shelby County. So yesterday, it seems, Scalia had no trouble with judges having the “power under the Constitution to invalidate this democratically adopted legislation” but today doing the exact same thing counts as ‘judges’ intrusion into [the people’s] lives.”
For those keeping track, the House of Representatives reauthorized the VRA 390-33 in 2006 and passed DOMA 342-67 in 1996.
Scalia’s hypocrisy would only have been more amazing if the two rulings had come out immediately after one another instead of a whole day apart.
Since when do people think they have an inalienable human right to be vigilantes?
I understand that people want to feel safe and believe that having a gun in the home will enable them to defend themselves. And I understand that acting in one’s self-defense is a legitimate legal defense. But using the language of self-defense to defend oneself in the (rare) case of shooting an assailant is not the same thing as asserting a human right to defend oneself.
To be sure, if we read a foundational text like John Locke’s Second Treatise of Government, we find a natural right to punish anyone who would harm us in our life, liberty, health, or possessions. In the state of nature, Locke tells us, each person is effectively judge, jury, and executioner unto herself. And, of course, it’s precisely the problem of a lack of independent judgment in the state of nature that leads people to join together to form a political community.
But for people to establish a political community, Locke asserts that people must give up to the government their natural right to punish criminal behavior and agree to have the government settle grievances. This is why we have standing laws that are meant to be applied equally by independent officers of the law and by the courts.
So, again, where is all of this talk of self-defense and vigilantism coming from?