Justice Scalia meets A.P. Herbert
February 27, 2016Posted by on
This week on Facebook provides three commentaries on Justice Scalia and two reprises from my posts on A.P. Herbert’s Misleading Cases. I’m hardly qualified to comment on Justice Scalia’s contribution the the defence of the Constitution of the United States, but at least the United States has a codified constitution that it can defend. Justice Scalia always asserted that the American Constitution was not a ‘living document’, a view that resulted in much opposition to his judicial rulings during his tenure as a Supreme Court judge.
Justice Scalia was right to oppose any notion that minority interests could impose constitutional change not in accord with the will of the majority. The United States of America is foremost a republic with a written constitution that requires any changes to be made by due process. Unlike here in the UK where the supremacy of parliament allows for our uncodified constitution to be constantly amended, contrary to the will of the people it is intended to serve. A lack of due process that A.P. Herbert’s protagonist, a Mr Albert Haddock, constantly battled against.
“No man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law.” Edward III — Liberty of Subject (Magna Carta 1354)
Monday — Magna Carta No Longer Law. The humour of A.P. Herbert in his Misleading Cases pokes fun at English Common Law, those that dispense it and those that would seek redress through it. Especially Mr Albert Haddock, a Don Quixote who tilted at judicial windmills with his own views about our notional freedom. Mr Justice Lugg’s summation in this case concluded that Haddock had done an ill service in raising the issue of Magna Carta, his rash actions had now prevented generations of English orators from continuing in the fond belief that Magna Carta was still the abiding bulwark of our liberties.
Tuesday — What Made Antonin Scalia Great. There are many who speak ill of the dead Justice Scalia but in The End of Nonpartisan Judicial Elections and the Rise of the Politiciary: He set forth three possible definitions of impartiality, which I assume he judicially ruled by:
- A lack of bias for or against either party in a proceeding.
- A lack of bias for or against a particular legal view.
- An openmindedness, or a willingness to consider opposing views on legal issues and remain open to persuasion when those issues arise in cases.
In the application of these definitions Justice Scalia has been accused of holding entrenched views that hindered progressives in their wish to enforce social change through amendments to the Constitution, a view hardly borne out by his rulings.
Wednesday — Scalia: A Radical In A Court Of Liberals. While there were clearly conservative implications to his approach, it also meant that he was often the Supreme Court’s awkward voice, puncturing its willingness to enact social change from above. He did not accept that, as an unelected judge, it was his responsibility to strike down democratically elected state laws in favour of a particular judicial gloss on the constitution.
Thursday — Justice Scalia and constitutional fidelity. Justice Scalia seemed to make headlines more than any other justice in part, because he had a colorful way of describing what could be dry topics like Constitutional originalism. He argued that the Constitution means what it says; it says it is the supreme law of the land; and all American judges have taken a solemn oath to be subject to what it says.
Friday — Sir Ethelred & The Sweeney. Another reprise, this time from 2013 and a real case in which Mr Justice Sweeney remarked at the trial of Vicky Price that the last vestige of Magna Carta was about to be removed. Hooray for Sir Ethelred in the case of British Phosphates And Beef-Extract, Ltd. v. The United Alkali And Guano Simplex Association, would that there were still counsels of his ilk wearing the silk.
The video below is of a 30 minute address given to The Federalist Society by Justice Scalia on Magna Carta as the source of the American Constitution. This talk was given 800 years after the first signing of the Magna Carta by King John at Runnymede.