Speaking Ill of the Dead

De mortuis nil nisi bonum.

Evidently the ancient Romans did not know Antonin Scalia.

I have no problem writing ill of Scalia. He’s dead. He won’t read this. And if he did I could care less.

Scalia was not, as his supporters like to claim, the voice of “conservatism” on the court. More likely, he qualifies as the voice of the “reactionaries”. Those who want to return to an imaginary past. He was not, as his supporters claim, a “strict constructionist” devoted to the Constitution. He was, in essence, a “reactionary” devoted to the Articles of Confederation.

You may recall that the Articles of Confederation were the first plan of government after the revolution. It gave massive power to individual states and little power to the central government. It guaranteed no rights nationwide. It was an abysmal failure. It was because the “states rights” concept  failed so miserably that the Constitution was formed.

Scalia was more devoted to the Articles than to the Constitution.  Some examples.

In 2000, in Bush v Gore. Scalia sided with the 5-4 majority is overturning the Florida Supreme Court.That  Florida court had ruled that it was necessary to recount the Florida voted because under Florida Constitution and law a vote so close had to be recounted. The Florida Supreme Court wanted to get it right.

Scalia, siding with the majority, supported the very odd decision that counting all the votes fairly would impact negatively on the Bush campaign. The vote count was stopped. The right of the state of Florida to follow its own election laws was overturned by the SCOTUS.  Justice Scalia had a son who was in the lawfirm directly involved in the Bush appeal to the SCOTUS, which should have been a reason for his recusal.

Scalia opposed the right of citizens to health care under the ACA. He used a rather foolish broccoli analogy to suggest that the federal government had no right to implement any law requiring people to..well..do anything.  (Actually, Scalia was the prime target of a 2012 blog post on this matter….    https://josephurban.wordpress.com/2012/04/11/scalia-and-the-broccoli-conundrum/)

Scalia opposed the rights of gays to marry. He took the position that only the individual states can decide on whether or not an adult can marry. State’s rights, ignoring the amendments guaranteeing equal protection under the laws.

Perhaps the strangest case ever for someone who claimed to be a “strict constructionist”  was the Citizens United fiasco. Overturning federal law to regulate money in politics. The decision basically created a new class of citizens, called “corporations”. According to Scalia, corporations had first amendment rights to spend money on candidates. No where in the Constitution is there any indication that the founding fathers sought to make corporations “persons” in the same sense as you and I are persons. this was a complete contortion of the reason for the Bill of Rights in the first place. To protect INDIVIDUALS from governmental power. Another example of Scalia claiming to be a “strict constructionist” and then ignoring the Constitution.

And, adding to this fantasy. A corporation called Hobby Lobby was granted “religious” reasons for not providing adequate health care to its employees. A total perversion of the meaning of the First Amendment. And Scalia was there. Leading the charge.

Scalia consistently refused to support individual rights. He opposed a woman’s right to abortion He supported overturning the Voting Rights Act. He supported the idea that individual states could deny classes of citizens certain rights. He was the most reactionary justice since WW2, perhaps since the Civil War. There is no doubt that he would have been very comfortable voting with the majority in the Dred Scott case. After all, slavery was a “state’s rights” issue.

So. I speak ill of the dead. But, in fairness to me, I spoke ill of him when he was alive. His death does not make his decisions any more palatable. The fact that he has passed from political power can only be seen as a positive step for individual rights. His loss is not one to mourn.