Thursday, March 17, 2005

Scalia Confounds

I have really tried to like Antonin Scalia a lot more recently. His opinions in Crawford and Blakely last year were very defendant-friendly, even if he couldn't deliver Ginsburg when it counted in Booker. And while I don't buy his originalist theory of Constitutional construction, the extensive discussion of history in some of his opinions fascinates me. But sometimes, he really drops a whopper. Witness this comment, made during oral arguments in the Van Orden 10 Commandments case (page 16):

JUSTICE SCALIA: And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds.
What the hell?!? For a man who professes loyalty to the intent of the Framers, one would think he would grasp the fundamental basis of our republic - government by the consent of the governed (by the people, of the people, for the people, etc.). The government getting its legitimacy from God is exactly what we were rebelling against. While the British monarchy at the time of the revolution was hemmed in a bit by Parliament (and therefore not as dictatorial as some continental kingdoms), the Crown still claimed a divine right to rule. It's the foundation of almost every monarchy.

I don't get it.

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