Chief Justice Roger B. Taney served on the U.S. Supreme Court during the most tumultuous period of the nation’s history, when bitter sectionalism rent the country asunder before and during the Civil War. Two of the most important decisions he presided over upheld both federal jurisdiction and “states’ right.” The problem is that both decisions were in the service of rather despicable causes. In Ableman v. Booth, he upheld federal supremacy in regard to escaped slaves, denying that states could pass laws that invalidated the Fugitive Slave Act passed by Congress, which required free states to detain and return escaped slaves to their owners.
But more reprehensible was the Dred Scot decision. In what should have been a simple case of deciding if blacks were “entitled” to the same rights as a white person, Taney’s opinion that they had “no rights that any white man was bound to respect” reflected his aristocratic Southern mentality and would have shocked few white people at the time. Instead, Taney decided to use the case to make a “definitive” statement on the constitutionality of the institution of slavery itself—even though the case before the court had a narrow focus. Taney’s opinion invalidated the 1820 Missouri Compromise, which save for Missouri outlawed slavery above the 36°30′ latitude. This meant that it was illegal for Congress to forbid slavery, or the possession of slaves, in any state or territory. This decision rocked the nation to the core, and more than any other event (including John Brown’s Harpers Ferry escapade), it hardened the resolve of the North not to cave into the demands of the South. While southern states declared “victory” over the “abolitionist” North, it in fact proved to be nothing of the kind; northern states refused to recognize the decision as either valid or having the force of law.
Now why am I bringing-up old history in this day and age? Because it seems that we have a new Taney in our midst, in the form of Justice Antonin Scalia. Actually, comparing Taney to Scalia is in many ways selling the former short, since outside the two abovementioned decisions, Taney is generally regarded as an effective jurist by historians. Scalia, on the other hand, is a naturally pompous bigot who is exhibit number one for those who see the Roman Catholic Church as a bastion of hide-bound “traditionalists.” In general, his “interpretation” of the U.S. Constitution is a matter of subtraction, rather than addition. In opinion after opinion, he has sought to diminish individual rights (such as defendant, abortion or gay rights), or supports decisions that make those rights less effective, such as in the Citizens United decision. Claims by his supporters that he favors a “retrained” approach to interpreting the Constitution received a mortal blow in that case; this was one instance where Scalia found it necessary to “add” to the Constitution—thus engage in the kind “judicial activism” that he allegedly opposes. The word “corporation” is never once mentioned or insinuated in the Constitution, and when the founders did speak of them, it was usually in terms of how they threatened democratic principles; for a justice who has shown little regard for individual rights, the crushing of such rights before the “rights” of corporate behemoths and billionaires is par for his course.
A better reason why a comparison between Taney and Scalia is more apt stems from his dissent in the recent Arizona immigration law case, which a majority of justices struck down three key elements of the “show me your papers” provision. Scalia was so incensed that the court did not see things his way that he read his dissent out loud from the bench, which is not the usual procedure. This was not the first time that Scalia felt so strongly that he thought it was necessary to air his dissent publicly; he did so in the 2003 in the Lawrence v. Texas case, when he ranted and raved about “the so-called homosexual agenda” which he blamed for convincing fellow justices to strike down Texas’ anti-sodomy law. However, it is in his written dissent where he truly went out-of-bounds.
“Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would con- sider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.”
On the surface, this seems reasonable enough. The problem arises in what “precedents” Scalia employs to justify his opinion, particularly in regard to what he refers to as the “myth” of unlimited immigration for the majority of this country’s history. “As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: ‘The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state’…To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.”
Back in the “good old days,” blacks, Chinese, Native Americans and “Mexicans” who became U.S. citizens by the treaty of Guadalupe Hidalgo were regarded as “obnoxious aliens” in many, if not most, parts of the nation, although Native Americans likely considered invading whites as the true “obnoxious aliens.” More disturbing is the suggestion that states may pick and choose who they prefer to be residents of their particular state. Arizona, for example, was settled after the Spanish by Anglos from southern slaveholding states; who they preferred to live in “their” state (or have “rights”) tended to have an “obnoxious” racial dimension. Scalia mentions in a footnote that “Many of the 17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant ‘permanent settlement to strangers who have been driven from their former home,’ though acknowledging that, when faced with the prospect of mass immigration, ‘every state may decide after its own custom what privilege should be granted in such a situation.’” However, he casually dismisses its implications by saying “But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise.”
Scalia notes that the Articles of Confederation allowed for “‘the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States’…This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another.” In order to “remedy” this dysfunction, the Constitution included the Privileges and Immunities Clause, in which “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” However, “if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of ‘obnoxious aliens’ into other States. This problem was solved ‘by authorizing the general government to establish a uniform rule of naturalization throughout the United States.”
We should immediately from this see that Scalia’s argument that immigration is a state responsibility rather than a federal responsibility is null and void; it shows that he prefers to infer the founder’s “intent” from his own biases. The privileges and immunities clause is in fact a denial of state “sovereignty” in that the rights of all citizens were under the protection of federal law—i.e. as U.S. citizens, not merely “citizens” of a state. Scalia’s famous “intellect” also takes a credibility dive when he refuses to acknowledge that “general government” de facto refers to the federal government, which is given the responsibility of establishing “a uniform rule of naturalization”—not the states.
Some of Scalia’s other “precedents” are bizarre and troubling to say the least: “Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that ‘No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.’…This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that ‘No State shall, without the Consent of Congress engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay’… This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.”
Huh? Anyone familiar with the history of Nazi Germany knows that Jews were likened to rats and vermin (such as in the propaganda film “The Universal Jew”) Is he suggesting here that certain groups of people in this country should be viewed as “commodities” that should be kept out because they are “dangerous and unwholesome,” rather than, say, human beings? Is he also saying that the federal government has no “right” to prevent a state from going to “war” against an “imminent danger,” meaning a certain “ethnic” group, as what appears to be happening in Arizona even now? But it is in the following that Scalia really starts to lose his footing, if not his mind:
“Notwithstanding the myth of an era of unrestricted immigration in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.” In opposing the Alien and Sedition Acts, “The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.”
It was hardly a “myth” that until the 1924 immigration law, there was virtual unlimited immigration by white Europeans; Scalia can only be referring to Chinese exclusion and similar laws that restricted non-Caucasian entry. But that isn’t the worst of it: Everyone who has taken the time to study what exactly was intended by laws restricting “immigration” in the antebellum days were those who upset the racial balance and/or those who white citizens did not want to either social with, or respect the rights of. In most cases this meant blacks; that Scalia would have the audacity—let alone foolishness—to attempt to justify his position by citing the prohibition against free blacks in the South indicates an utter lack of sensitivity to this country’s history of racial discrimination. In Oregon’s infamous “lash laws,” where black residents who refused to leave the state were given 20 to 39 lashes across their backs every six months until they left the territory; the law was then “modified” to forced labor. Scalia then twists his tongue by insisting that only states have the “right” to exclude “unwanted aliens,” yet at same time have the right to include “alien friends,” which I can only assume means other white people and maybe “model minority” Asians.
Scalia then dismisses concerns that Arizona authorities will engage in arbitrary civil rights violations based on race or “ethnicity”: “The Court raises concerns about ‘unnecessary harassment of some aliens . . . whom federal officials determine should not be removed’…But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority to harass anyone.” Here, Scalia insists that Arizona authorities will only discomfit illegal aliens and not use their authority to arbitrarily abuse anyone simply because of they are members of the “suspect” group. He apparently is not familiar with the activities of fellow Italian-American Joe Arpaio. I can’t help but to observe that some of the most virulently bigoted fanatics in this country are people with names like Santorum, Tancredo, Arpaio and Scalia.
Scalia finished his screed by insisting that Arizona had a right to “protect” its “sovereignty,” while ignoring that Arizona southern-fried attitude toward non-whites has had a sordid history, and it has no moral or ethical standing. He then launched into a complaint about Obama’s recent immigration initiative, allowing some children of illegal immigrants to stay in the country if they met certain requirements. Taney-like, Scalia expressed a desire to “rule” on this issue as well, which he no doubt hoped would strike a “death blow” to the further immigration of people he dislikes on “principle.”
Subsequently, Scalia has been accused of being more like “a conservative blogger or Fox News pundit than a justice," a” pompous celebrant of his own virtue and rectitude," and “naïve” and “unrealistic” in his interpretation of constitutional law. Scalia is known for his “biting wit” that makes “liberal” litigators before the court uncomfortable. What these litigators need to do is put this pompous ass in his place and simply say “Nothing I say will change your mind, so why am I listening to you?”
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