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Tuesday, June 26, 2012

Scalia is a Hack


Antonin Scalia isn't even making an effort to disguise his partisan hackery.
In his dissent on the SB1070 "papers, please" decision, he not only takes gratuitous swipes at Barack Obama's immigration policy, he says ridiculous things like this:

"If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state." 

Yes, we should. Except no one does. No one refers to Arizona as a sovereign state, because Arizona is not a sovereign state. Arizona, like every other state, is subject to the laws of the US Federal government. That's why, even though California has legalized medicinal marijuana, anyone who uses medical pot is still running the risk of arrest by the D.E.A. Because Federal Law supercedes State law. It's Article VI, Clause II, the "Supremacy Clause."

And this:
"Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants. . .
What I do fear—and what Arizona and the States that support it fear—is that ‘federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration. . "

Because, as any law professor will tell you, the first step to determining the constitutionality of a law is to consider how people feel about it.

And this:
There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.”

Great. Before the adoption of the Constitution. How is that relevant to our reality in which the Constitution has been adopted?


And this:

The Articles of Confederation had provided that “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.” Articles of Confederation, Art. IV.

The Articles of Confederation? You mean the document that was scrapped and replaced by the Constitution? That Articles of Confederation? Does Scalia really think that they have any relevance?

And this:
Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that “[n]o 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.” Art. I, §10, cl. 2. This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods.

Hey, at least he's referring to the actual Constitution this time. Of course, the part he quotes deals with imports and exports, not people, and severely limits the states' ability to restrict those. But still. . . it's something? I guess?

And this:
Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?

Yes, speculation about what might have happened 200 years ago under different hypothetical circumstances is probably the best way to answer thorny legal questions!

And the capper:

. . . in the first 100 years of the Republic, theStates enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.

Yeah, states used to be allowed to keep the blacks out, so why not the browns? Seriously? This is your precedent? You know states were also allowed to have slavery during the first 100 years of the Republic. Should we bring that back, too? No, don't answer that.

1 comment:

Margaret Benbow said...

Hmm. Scalia. Doesn't sound like a Native American name. So I guess his ancestors must have---gulp--immigrated recently. Like within the last hundred years. Obviously according to his reasoning they should have been stopped at Ellis Island and sent right back to Italy where they could starve in peace; or maybe they could just have been shackled and thrown overboard, like the slaves he was stupid enough to bring up. So, when is this idiot retiring again?