More on the ideas of Alito
Nov. 2nd, 2005 01:26 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumI said yesterday that I was worried by the odd views of what constitutes the Constitution, and the limits of property (in both the modern sense of the word, "things," and the more archaic sense, "person"), and how much leeway the state ought to have in the excercise of encroaching on such liberties.
One of the more troubling aspects of Scalia (and as Alito is protrayed as a Scalia's Scalia, it seems apropos) is that his views on stare decisis, which is the idea that precedent is a controlling factor, unless something has gravely changed (which is part of why Plessy v Ferguson stood for as long as it did) are that it isn't all that binding.
Scalia avers that all decisions stem from the Constitution itself, and so caselaw isn't as important as the parent document, with which I, tend, to agree. Where it becomes a problem is that no one can truly say what some aspects of the document, mean, because the nature of a proscriptive text is that it's vague.
The fifth commandment reads, "Thou shalt not kill". Ok, seems pretty straightforward, but what does "kill" mean? In the original Hebrew the word rendered as, "kill" in the King James was what we now translate as murder. Which only narrows the field a little, since what is defined as murder is variable.
The Constitution is much the same. Such thing as "cruel and unusual" or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," are not as plain as say, E=MC^2.
Scalia claims to know the intent of the framers. Conveniently for him it seems the agreed with his prejudices on things (he might say it's convenient for us that he is such a throwback he knows what the meant, despite the passage of time, and despite the bending of previous minds to the problems, where they saw, "as through a glass, darkly" he has the clarity of purest glass with a good source of light, but I digress, and through a phrase snarkly).
What then of Alito? How does he look to established law (in the form of precedent)? From the evidence, not so well. He's been reversed a lot.
More interestingly is the things he's reversed. Eric Muller (Is That Legal) has a piece up on this. What happened is that Alito reversed an opinion of the court he was on (which he'd not been on at the time, or at least wasn't part of the trio re-hearing the case). The case was a first ammendment question (separation of church and state, as related to a nativity, to which was added some non-christian trimmings. The Third Circuit ruled (unanimously, a Reagan, Clinton and Bush Pere, appointee each on the panel) that the non-christian bits didn't change the essential nature of the religiousity of the crêche. When it came back, Alito said it was kosher.
The whole thing is worth reading Here
Some of the juicy bits:
Jersey City again appealed. This second time, the case came before a mostly different panel: Judge Nygaard (Reagan appointee) was on it again, but now he was joined by Judges Rendell (Clinton appointee) and Alito (GHW Bush appointee).
Over a strong dissent by Judge Nygaard, Judge Alito upheld the display. Although the earlier panel had been quite clear in saying that Frosty and the sleigh and the Kwanzaa ribbons did not defeat the display's message of religious endorsement, Judge Alito characterized that as "dictum" in the earlier opinion (that is, legally non-binding commentary, rather than legally binding precedent), and concluded that the supposedly secular doo-dads in the display actually did make the display satisfy the First Amendment.
Judge Nygaard was, to use a piece of appellate technical jargon, "pissed." "This constitutional about-face in the same case," he said, "troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court." Judge Nygaard was of the view that only the Third Circuit en banc (that is, all of its members together, as opposed to just a panel of three) could set aside an earlier panel's opinion like this.
As a technical matter, Judge Alito may have been right that the first panel phrased its analysis in a way that turned its sharp condemnation of the Jersey City display into dictum. The condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause.
If Senators are interested in understanding how Sam Alito thinks about how much deference a court's earlier pronouncements deserve, they should question him closely about what it was that led him to choose to abandon the clearly expressed, unanimous view of an earlier panel in the same case, rather than honoring it or seeking the ruling of the entire Third Circuit sitting en banc.
That's where the meat of the matter is.
It isn't about choice. Not only do we lose on that one (because the Right is loud, and the base wants Roe overturned. The Republican Party doesn't really want it overturned, because 1: the majority of the populace likes things the way they are, so it's not actually a good move for those who want to be re-elected, and 2: because Roe is how they keep large parts of that base energised. I'd wager, in my cynical moments, the present push to portray Christians as persecuted {with things like Nativities being forbidden if done with public funds; or apparent sanction, being part of that bit of the propoganda mill of the class and culture war the Right is waging} being how they are getting around being in charge of all three branches, and not getting what the base wants done (gutting choice) done), but choice is only a part of the picture, and the picture is about liberties.
It's about my being allowed to swing my fist, so long as I don't hit your nose. It's about 218 years of tradition and caselaw. Some of it dreadful (Plessy) some of it painful (Dred Scott), but all of it the attempt to make a compact which was meant to confer, and preserve, the greatest liberties to the greatest number; and make it not just an ideal, but a viable way of life.
One of the more troubling aspects of Scalia (and as Alito is protrayed as a Scalia's Scalia, it seems apropos) is that his views on stare decisis, which is the idea that precedent is a controlling factor, unless something has gravely changed (which is part of why Plessy v Ferguson stood for as long as it did) are that it isn't all that binding.
Scalia avers that all decisions stem from the Constitution itself, and so caselaw isn't as important as the parent document, with which I, tend, to agree. Where it becomes a problem is that no one can truly say what some aspects of the document, mean, because the nature of a proscriptive text is that it's vague.
The fifth commandment reads, "Thou shalt not kill". Ok, seems pretty straightforward, but what does "kill" mean? In the original Hebrew the word rendered as, "kill" in the King James was what we now translate as murder. Which only narrows the field a little, since what is defined as murder is variable.
The Constitution is much the same. Such thing as "cruel and unusual" or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," are not as plain as say, E=MC^2.
Scalia claims to know the intent of the framers. Conveniently for him it seems the agreed with his prejudices on things (he might say it's convenient for us that he is such a throwback he knows what the meant, despite the passage of time, and despite the bending of previous minds to the problems, where they saw, "as through a glass, darkly" he has the clarity of purest glass with a good source of light, but I digress, and through a phrase snarkly).
What then of Alito? How does he look to established law (in the form of precedent)? From the evidence, not so well. He's been reversed a lot.
More interestingly is the things he's reversed. Eric Muller (Is That Legal) has a piece up on this. What happened is that Alito reversed an opinion of the court he was on (which he'd not been on at the time, or at least wasn't part of the trio re-hearing the case). The case was a first ammendment question (separation of church and state, as related to a nativity, to which was added some non-christian trimmings. The Third Circuit ruled (unanimously, a Reagan, Clinton and Bush Pere, appointee each on the panel) that the non-christian bits didn't change the essential nature of the religiousity of the crêche. When it came back, Alito said it was kosher.
The whole thing is worth reading Here
Some of the juicy bits:
Jersey City again appealed. This second time, the case came before a mostly different panel: Judge Nygaard (Reagan appointee) was on it again, but now he was joined by Judges Rendell (Clinton appointee) and Alito (GHW Bush appointee).
Over a strong dissent by Judge Nygaard, Judge Alito upheld the display. Although the earlier panel had been quite clear in saying that Frosty and the sleigh and the Kwanzaa ribbons did not defeat the display's message of religious endorsement, Judge Alito characterized that as "dictum" in the earlier opinion (that is, legally non-binding commentary, rather than legally binding precedent), and concluded that the supposedly secular doo-dads in the display actually did make the display satisfy the First Amendment.
Judge Nygaard was, to use a piece of appellate technical jargon, "pissed." "This constitutional about-face in the same case," he said, "troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court." Judge Nygaard was of the view that only the Third Circuit en banc (that is, all of its members together, as opposed to just a panel of three) could set aside an earlier panel's opinion like this.
As a technical matter, Judge Alito may have been right that the first panel phrased its analysis in a way that turned its sharp condemnation of the Jersey City display into dictum. The condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause.
If Senators are interested in understanding how Sam Alito thinks about how much deference a court's earlier pronouncements deserve, they should question him closely about what it was that led him to choose to abandon the clearly expressed, unanimous view of an earlier panel in the same case, rather than honoring it or seeking the ruling of the entire Third Circuit sitting en banc.
That's where the meat of the matter is.
It isn't about choice. Not only do we lose on that one (because the Right is loud, and the base wants Roe overturned. The Republican Party doesn't really want it overturned, because 1: the majority of the populace likes things the way they are, so it's not actually a good move for those who want to be re-elected, and 2: because Roe is how they keep large parts of that base energised. I'd wager, in my cynical moments, the present push to portray Christians as persecuted {with things like Nativities being forbidden if done with public funds; or apparent sanction, being part of that bit of the propoganda mill of the class and culture war the Right is waging} being how they are getting around being in charge of all three branches, and not getting what the base wants done (gutting choice) done), but choice is only a part of the picture, and the picture is about liberties.
It's about my being allowed to swing my fist, so long as I don't hit your nose. It's about 218 years of tradition and caselaw. Some of it dreadful (Plessy) some of it painful (Dred Scott), but all of it the attempt to make a compact which was meant to confer, and preserve, the greatest liberties to the greatest number; and make it not just an ideal, but a viable way of life.
