Scalia on Globalization & the Law

Fora TV has picked out one of the most provocative extracts from Justice Antonin Scalia’s lecture to the American Academy in Berlin, here concerning the role of the judiciary vis-à-vis natural law, which is a highly contentious point, but just one of many raised in the somewhat lengthy talk.

Should you have the time, it’s worth listening to the whole thing, if for nothing else than the Q&A at the end which is predictably entertaining (which is where this clip came from). Whatever one thinks of Scalia’s legal opinions, he’s most certainly not dull or unfunny.

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43 Comments

Filed under Global Economy, Legal Issues, SCOTUS

43 responses to “Scalia on Globalization & the Law

  1. These ideas of his are very reminiscent of Stephen Colbert’s ‘wikiality’: “A reality where, if enough people agree with a notion, it becomes the truth.”

    A lot of people might vote to deny evolution (a specific example of a natural law), but it would stand nonetheless.

    In software development we have a saying “there is no silver bullet”, meaning there is no one solution for all problems. Democracy isn’t a silver bullet either.

  2. Ti-Guy

    I’d have to listen to the whole hour to say something useful about this. And since it’s Scalia, I’m sure I’ve got better things to do.

    I did listen to the first five minutes of it and lost interest when Fat Tony framed the discussion in the usual dichotomies; right vs. left, cultural globalisation vs. economic globalisation, etc. etc. Maybe he undoes that later on, but alas, I’ll never find out.

  3. Guzzeuntite

    “A lot of people might vote to deny evolution (a specific example of a natural law), but it would stand nonetheless.” — The Rational number

    I’ve never heard evolution being used as an example of natural law. Freedom of speech? Yes. Freedom of religion? Yes. Evolution? Explain.

    “Whatever one thinks of Scalia’s legal opinions, he’s most certainly not dull or unfunny.” — RT

    Some of his opinions are quite funny and acerbic. His dissents, often more so. His opinions and dissents are easily the most readable of any Justice in recent times. The man knows how to write and he doesn’t suffer fools gladly.

  4. Guzzeuntite

    “And since it’s Scalia, I’m sure I’ve got better things to do.”

    Bravo.

  5. Guzzeuntite

    Dropped from last comment to Ti-Guy:

    I have never seen anyone take more time more often than you to tell us all that you don’t care about something.

    Guess what? We don’t care that you don’t care.

  6. Ti-Guy

    The man knows how to write…

    Well, considering the audience he’s tasked to write for, that’s not saying much.

  7. Guzzeuntite

    “Well, considering the audience he’s tasked to write for, that’s not saying much.” — Ti-Guy

    You mean lawyers. Amen to that, brother. They should die in another 9-11 with the other fat Americans. Right?

  8. Ti-Guy

    I have never seen anyone take more time more often than you to tell us all that you don’t care about something.

    Ignoring the risible hypocrisy of this statement for the moment…

    I never did care about the American Supreme Court until it installed Dubya, which set off a series of events the World will never recover from.

    Instead of finding fault with that, you should be congratulating me for paying attention to your fat dumb, immoral and corrupt country only when it’s absolutely necessary. I’ve told you before, I mostly ignored it from the Reagan years until March 2003.

  9. Guzzeuntite

    “I never did care about the American Supreme Court until it installed Dubya, …”

    Oh … what? Ah, ummm. Sorry; the old “he was selected, not elected” mantra put me to sleep. Namaste. That old story’s been told so many times … You were saying?

    “I’ve told you before, I mostly ignored it from the Reagan years until March 2003.”

    Have you? I must have been asleep again. It’s your mantra thing. Tell me more about how a citizen of a teeny tiny country next door to a big, gigantic, and most awesome empire is able to ignore said empire. Is it because of the “Mom’s basement thing” you’ve alluded to?

  10. Ti-Guy

    Tell me more about how a citizen of a teeny tiny country next door to a big, gigantic, and most awesome empire is able to ignore said empire.

    It’s easy to do if you don’t watch American television news. That’s all it required. And it wasn’t much of a sacrifice, that’s for sure.

    In fact, it paid off in 2003, when, for some strange reason, I (and many like me) were among the first to know that Iraq *didn’t* have weapons of mass destruction.

  11. Guzzeuntite

    “I (and many like me) were among the first to know that Iraq *didn’t* have weapons of mass destruction.”

    Well, color me fascinated. Tell me all about how you knew. Start with “Bush was selected, not elected.”

    I love hearing you tell me how smart you are.

    Finish the story by telling me how “you” and “many others” could all be “the first” to know something. Like simultaneously and everything.

    Do. Tell.

  12. Ti-Guy

    I love hearing you tell me how smart you are.

    No you don’t. It makes you angry and resentful.

  13. Guzzeuntite

    “It makes you angry and resentful.”

    Ah, no it doesn’t. It makes me laugh and think what a jerk you must really be. Unless you put me to sleep first.

  14. Ti-Guy

    Unless you put me to sleep first.

    Well, that never seems to happen, does it?

  15. Guzzeuntite

    Sure it does, but I’ve mastered the art of the catnap.

  16. So human rights should be defined entirely by politics. If the majority of people believe you do not have a right then you do not. The founding fathers must be rolling over in their graves with this analysis. There are certain inalienable rights that cannot be denied an individual whether the people through their government want to deny you these rights or not. You cannot believe in inalienable rights and at the same time believe that courts have no role in establishing what are the inalienable rights. Yes, the constitution sets out what the inalienable rights are but it is impossible to write any document that will contain sufficient information to apply it to all situations. That’s why we have judges, that is their job and if Scallia doesn’t want to do his job he should resign.

  17. Brent Fullard

    How refreshingly honest of an answer on Scalia’s part!

    He also happens to be correct in his view.

  18. Gayle

    “You cannot believe in inalienable rights and at the same time believe that courts have no role in establishing what are the inalienable rights.”

    Bingo.

  19. zippee

    A bit of a whiner, wot? Get back to work!

  20. Ti-Guy

    “You cannot believe in inalienable rights and at the same time believe that courts have no role in establishing what are the inalienable rights.”

    As I said, I’d have to listen to the whole hour to determine whether that’s what he’s really saying (which is surprising for an American). I, for one, don’t believe there’s any such thing as “inalienable rights,” and that it’s actually dangerous to believe this. The belief tends to lull people into a false sense of security; that their rights have some sort of objective existence that can be simply uncovered, articulated and asserted and all will be fine. Of course we know, that’s not true, given how easily these rights are removed at precisely the time they’re needed the most. The best approach to one’s rights is to assume they are exceedingly fragile and that the defending other people’s rights is the greatest priority, since the only robust guarantor of those rights are communal or social solidarity.

    I doubt I can listen to a full hour of Fat Tony, however, since I think he’s a psychopath. He once asserted that “cruel and unusual punishment” doesn’t extend to torture, since the tortured aren’t being “punished for anything” (ie. they haven’t been formally charged with a crime). He also supports the notion of constitutional intentionalism, which I think is something he either finds more of an amusing puzzle to occupy is erratic mind with than something having to do with rights and laws real people have to live with, in the here and now. More likely, however, is that he advances this method of interpretation because it permits him to simply invent reasons why a particular decision is constitutional or not.

    I’m just glad that notion does not figure into Canadian constitutional law at all, at all.

  21. Bob Bruce

    Mr. Dion and MPs Gerard Kennedy, Martha Hall-Findlay, Maurizio Bevilacqua, Joe Volpe and Hedy Fry were all given extensions that expired on New Year’s Eve.

    “Due to a difficult fundraising environment, including a recession, a general election and constant election speculation, some of the campaigns have indicated they will require more time to repay their debt,” wrote Liberal director of communications Daniel Lauzon in an email.

    As Mr. Mayrand is not allowed to grant further extensions, the candidates are left in a difficult position. If they can raise the money, they must now get permission from a judge to pay off their loans. Otherwise, the outstanding debts will be treated as campaign contributions under the law.

    Because most of the loans were in five or six figures, the amounts that are converted to “deemed contributions” could be in violation of the Canada Elections Act, which caps donations at $1,100 per contributor per campaign.

    http://www.nationalpost.com/news/story.html?id=2405659

  22. Ti-Guy

    Flush the troll.

  23. Lost in all the personal attack, to a great extent, is the idea of the struggle between “rights” and “democractic entitlements”.

    I think Scalia over-simplifies. A constitutional democracy (Canada and the U.S. for example) contemplates that certain rights are not subject to the whims of democratic rule. Rights of equality based upon race or gender for example.

    The difficulty is that all “rights” on some level are still granted by majority rule, and are more or less “entitlements” arising from democracy. Constitutions come into existence based upon the will of the people in the first place.. and can be changed or ignored by the “people” as well (can you say Quebec language laws?)

    Where Scalia has it right, however, is the need to have a healthy mistrust for the ability of the Judiciary to make the BEST decisions on issues of so-called “natural rights”.

    Abortion is the best example.

    There are those who believe that the right of the person to autonomy over their own body, and the right of women, to not have that autonomy controlled by men, is just such a right.

    And there are those who believe that life and person-hood begins at conception and the right to be free of being murdered is even more fundamental than the right of personal autonomy over medical decisions.

    And neither camp is really open to the concept the the OTHER point of view is worthy of constitutional protection.

    So then what?

  24. Ti-Guy

    Did you watch the whole hour, Rob?

  25. Ti-Guy

    By the way, Rob, between these two positions:

    There are those who believe that the right of the person to autonomy over their own body, and the right of women, to not have that autonomy controlled by men, is just such a right.

    And there are those who believe that life and person-hood begins at conception and the right to be free of being murdered is even more fundamental than the right of personal autonomy over medical decisions.

    Do you think it is really is all that difficult to determine what constitutes a demonstrable issue of natural justice, as your “So then what?” seems to suggest?

    One position is accompanied by a body of evidence that places certain matters of fact beyond dispute (such the biological impossibility of life to be imbued with personhood below a certain threshold of complexity) and a moral imperative that, dealing as it does with the right over one’s own body (about the only thing that comes close to an inalienable right as I can think of).

    The other other rests on assumptions that have no basis in science, that attempts to prize the rights of an ambiguously-defined entity which is incapable of responsibility above those of an entity, inarguably considered a person from whom responsibility is insisted and deals with an issue that effects other people only?

    Really?

  26. Guzzeuntite

    “I doubt I can listen to a full hour of Fat Tony, however, since I think he’s a psychopath.” — Ti-Guy

    Really, what is wrong with you, Ti-Guy? Just about everyone you disagree with politically you term a “psychopath.” You are a very strange man.

    Further, you lie. You say you can’t be bothered to listen to an hour of Scalia’s talking, yet you critique his views and conclude he is deranged. Do you just read what others say about him and mindlessly parrot their conclusions? If so, you are a dolt who has no basis to call him a psychopath, and your diagnosis of him is a lie. But if you have listened to or read Scalia’s writings, then you lie when you say that you can’t be bothered to listen to him. I think the truth is that it’s a little bit of both. You are a parrot who bases his comments on the conclusions of others, but you read just enough of what others have written to get your prejudices confirmed. Nevertheless, you are not man enough to admit that you care. How many comments do you post where you say “I don’t care about this” or I don’t care about that”? I’ll tell you, you basement Cthulhu: a lot. Amazing. Who are you trying to impress?

    Like most who scream out that everyone is a psycho, you are a maladjusted psychotic yourself, I am sure. Witness your losing it on a number of occasions even just recently, such as your wishing for another 9-11 to kill Americans. Or how the time you wished for the death of the Pope? How about all the times you expressed hatred for various things, such as fat people, “middle managers,” America, or Americans?

    Finally, your foolish discussion of inalienable rights carries zero weight, since we all know about this pathological anti-Americanism of yours.

    “The best approach to one’s rights is to assume they are exceedingly fragile and that the defending other people’s rights is the greatest priority, since the only robust guarantor of those rights are communal or social solidarity,” you say.

    What a joke you are with this. “Communal solidarity”! A cowardly twerp like you wouldn’t fight for his own rights, much less the rights of anyone else. Being various bloggers’ personal attack dog of the comments section doesn’t qualify, Tough Guy. Calling Scalia “Fat Tony” impresses no one but you, and it promotes no one’s rights.

    It is clear that you have not the slightest fucking clue what Scalia is talking about and never will, because, even if you sat through an hour of his talk, you would not hear a damn thing. I believe the mental disorder you suffer from is some form of high functioning autism. This explains your demonstrated social pathologies: the imperviousness to the views that are anything other than your own narrowly focused hatreds and resentments.

    Don’t even bother responding to me, Cthulhu, I am done with you for the day. Then, no more armchair diagnoses from me; it’ll be back to the fun of taunting the mad little puppy dog that you are.

  27. Guzzeuntite

    So, I guess I’m not quite done, Cthulhu. Your last comment (in this thread that you don’t really care about) is almost totally incoherent.

    Now I’m done.

  28. TG.

    Right now, there is no law to prevent a fetus from being aborted after 8 1/2 months. It is, at that stage, still considered a non-person even though it would be easily viable outside of the mother.

    Now – don’t get me wrong. I’m pro-choice, and I have no problem drawning an arbitrary line in the sand, say, the end of the second trimester.. because, in my mind, the idea of “rights” of the mother and “rights” of the fetus are not, in any sense “natural” or objectively defineable. They are the “rights” that society decides to give them.. that’s simply my point. That the idea of “natural rights” is somewhat fictitious – but that doesn’t mean that we should allow for tyranny by the majority and give up on the concept of a constitutional democracy where the rule of law applies.. only that it’s not as black and white as so-called “natural law” advocates suggest.

  29. Ti-Guy

    Rob:

    It is, at that stage, still considered a non-person even though it would be easily viable outside of the mother.

    You’re conflating personhood with viability. As we both know with patients in a persistent vegetative state, the two aren’t the same.

    I’m not actually arguing abortion, but addressing bad arguments that infect most of our public discussions these days, which is really what this topic is about, no better source for which I can think of exists than that psychopath, Fat Tony Scalia.

    …and lawyers in general, though not you! 😉

  30. Ti-Guy

    Hey, Guzzler…I’ve got a fat juicy one that that always moving mouth of yours can be put to better use for. Interested? Leave me your phone number and I’ll arrange it.

    Otherwise, go fuck yourself you stupid, boorish, obnoxious, big-mouthed, fat-arsed Americunt.

    I called the Ungeheuer Fat Tony a psychopath based on his rationalisation of torture being not exactly unconstitutional. Anyone who justifies torture deserves to be put to death as far as I’m concerned.

  31. Ti-Guy

    One last bit, Rob:

    and I have no problem drawning an arbitrary line in the sand, say, the end of the second trimester..

    Experience show that those who oppose abortion never stop at such a limit; that once established, they keep pushing for even more restrictions.

    I’m not a fan of abortion; I’m a fan of seeking closure on issues for which no solution will ever meet with everyone’s approval and moving on. I’m afraid, in this case, there are just no good arguments left to support an abortion law of any kind and that we should move on to focusing on what are more important issues; sexual education and the availability of contraception, pre-natal and early childhood care, support for women who make a difficult decision to carry their children to term despite extenuating circumstances and the the socio-economic conditions that promote or discourage the establishment of families and child-rearing.

  32. ..and on your last point, we are in compelete agreement. Creating an atmosphere where the decision to abort or not is not prevalent would be much superiour.

    And I’m not losing a lot of sleep about the current state of affairs – I was speaking more philosophically about how, as humans, we sometimes suffer certain delusions about what “natural” or “objective” means.

    Though I think you have a point about how..

    Experience show that those who oppose abortion never stop at such a limit; that once established, they keep pushing for even more restrictions.

    I would say the same thing about those who advocate censorship.

  33. Ti-Guy

    I would say the same thing about those who advocate censorship.

    Don’t get me started. It’d be nice if people understood what censorship really is and who is doing most of it.

  34. Gayle

    “I, for one, don’t believe there’s any such thing as “inalienable rights,” and that it’s actually dangerous to believe this. The belief tends to lull people into a false sense of security; that their rights have some sort of objective existence that can be simply uncovered, articulated and asserted and all will be fine. Of course we know, that’s not true, given how easily these rights are removed at precisely the time they’re needed the most.”

    Well, maybe just a matter of semantics, but I beg to differ. Having rights does not always mean those rights will not be breached.

    I believe we do have inalienable rights. Whether those rights are always honoured by the rest of the population is another thing altogether.

    And while I do not want to enter into a debate about abortion, I feel compelled to reply to this:

    “Right now, there is no law to prevent a fetus from being aborted after 8 1/2 months. It is, at that stage, still considered a non-person even though it would be easily viable outside of the mother.”

    Totally irrelevant, because no one would go through 81/2 months of pregnancy and then decide to terminate. We do not need a law on abortion.

  35. Ti-Guy

    Well, maybe just a matter of semantics

    No maybe. It *is* a matter of semantics and how we define “things” is of crucial importance to how we conceptualise them, talk about them and think about how they are dealt with in practice.

    Describing a right as inalienable (ie. unforfeitable or imprescriptible) is obviously false. That aside, the point I’m really making though is that we’ve come to believe that asserting our own rights is more important than worrying about the rights of others. I believe the exact opposite is true, because the only proven way to protect rights is for others to defend them.

    It’s a less morally-righteous and theorectically abstract position I’m arguing here and more of an appeal to both self-interest *and* communal solidarity, which is usually the “sweet spot,” where the needs of both the individual and the collective are satisfied mutually. Capitalism (the ethical type, that is) is another one, in which the self-interest of the individual is yoked to the common good.

  36. What’s happened since the New Year, Ti-Guy? You’re making constructive contributions that abound with good sense.

    Your point is exactly what I’ve been saying. That “rights” are the things that society recognizes and agrees to protect. And they aren’t going to be determined, at the end of the day, in some objective, dispassionate way, without effort and commitment by the broader society. It’s not just about scibbling a few lines in a constitution and leaving it to the Courts.

    And you are completely onside, if I might be so bold, in suggesting that our society has become overly consumed with their “rights” and more than inclined to ignore their communal obligations, regarding such trivial matters such as ethics, honesty, and empathy.

    And your point regarding capitalism is well taken. Capitalism works. However, the most ardent capitalist is an idiot if he doesn’t understand that, in the long run, business cannot prosper without a commitment to assert its own self interests within ethical boundaries and understanding the symbiotic nature of the interests of the consumer, the employee, and the broader society.

    Of course, you would think that would have been clearly evident with what happened with Lehman Brothers, A.I.G., et al, however, I suspect the only lesson learned there was to make sure your retirement fund isn’t made up completely of your own stock options.

  37. Oh. And sorry, Gayle, but your both missing the point, and betraying your bias when you say that my comments are

    “Totally irrelevant, because no one would go through 81/2 months of pregnancy and then decide to terminate. We do not need a law on abortion.

    I wasn’t really talking about “abortion” in the sense of whether it is good, bad, or indifferent.. I was talking about the reality of competing interests which betray the illusion of “natural” rights. Namely, that an 8 1/2 month old fetus has certain interests, as does the mother carrying it, which cannot be simply reconciled by some suggested notion that their respective rights to their individual welfare are “natural”.

    Oh.

    And to use your vapid analogy, we don’t need laws regarding killing infants after they are born either, as “No one would go through 9 months of pregnancy and then murder their child.”

    This is the problem with people that check their intellect at the door when they go down the road of passionate advocacy for a principal. They betray the fact that they have nothing relevant to contribute at all, but their own emotional bias.

  38. Ti-Guy

    What’s happened since the New Year, Ti-Guy? You’re making constructive contributions that abound with good sense.

    Nothing happened. I’m being hyper-attentive about the accuracy of communication (which, if you knew me, you’d know is practically the only thing I’m really interested in), since I can never escape the fact that *that’s* the biggest problem facing us, particularly among reasonably intelligent, educated, fair-minded people.

    And thus..

    However, the most ardent capitalist is an idiot if he doesn’t understand that, in the long run, business cannot prosper without a commitment to assert its own self interests within ethical boundaries and understanding the symbiotic nature of the interests of the consumer, the employee, and the broader society.

    When I talk about “individual,” I mean just that. A person, not an abstract entity that cannot be assigned the attributes that are proper to persons only. So “business” doesn’t have self-interests. In fact, it’s not really an entity at all, but a aggregation of processes and not ones that are just proper to capitalist economic systems.

    It’s when these concepts are conflated and confused and the discussion then involves the seemingly neverending depredations of corporatism and the events that occur in that surreal world called “the financial economy” is how socialists (those of average intelligence or little engagement in economics at least) are able to conclude, all the time, that capitalism is fundamentally disordered and will always produce undesirable results, sooner or later and that *something else* must replace it.

    When I talk about capitalism, I only have in mind its ability to generate surplus wealth that can then be exploited for other purposes. After that, the discussion really is about other things, such as ethics, morality, the sciences that tell us things about human nature, politics, sustainability, etc. etc. Curiously, I rarely think about money when I think about capitalism.

  39. Fair enough point, I suppose. The comfort with which directors use the corporate veil to hide their own lack of ethics has become endemic, though I didn’t intend to suggest that “business” ethics exists in the abstract, apart from the “people” who operate them.

    And I suppose I see capitalism, at its best, from a slightly libertarian point of view as a mechanism to allow for a democratic redistribution of wealth. Effort and industriousness being rewarded, allowing for a breakdown of any formalized class structure.

    Now – I’m not that naive, particularly going back a few years, and to some extent even today, to not recognize that there are some people to whom the Horatio Alger myths apply to more than others.. but the theory of capitalism allows for the poor to be less poor or even wealthy, and through that, to effect change in society that then incorporates their life experience – as compared to feudal societies and autocracies, or even third-world democracies where much of the population is uneducated and where the rich just stay rich, and the view of government will always be limited by the ability of those in power to see beyond their own limited life experience and own class self-interest.

  40. Ti-Guy

    And I suppose I see capitalism, at its best, from a slightly libertarian point of view as a mechanism to allow for a democratic redistribution of wealth.

    I’ve never once heard of any libertarian thinking of capitalism as a mechanism for wealth redistribution. In fact, I thought that idea had died with the end of feudalism.

    I don’t see capitalism in terms of wealth redistribution at all. Just wealth creation. Again, other concepts need to be brought into play when we have to address that issue.

    I think you might be conflating the availability of credit with the productive use of surplus wealth, by which I mean *real* wealth, not an imagined one or one fabricated out of thin air.

  41. Gayle

    Well I did not want to get into the abortion debate Rob, as I said, but the fact is your example is one that is used to inflame emotions, so I suggest you consider that before you start accusing people of

    “betray[ing] the fact that they have nothing relevant to contribute at all, but their own emotional bias.”

    You with your “arbitrary line in the sand at the third trimester”.

    Anyhoo…

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