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Excerpt: "Since Justices Scalia, Kennedy, Thomas and Alito don't have the real history on their side, they apparently saw little option but to make up their own."

Supreme Court Justice Antonin Scalia. (photo: AP)
Supreme Court Justice Antonin Scalia. (photo: AP)

How Scalia Distorts the Framers

By Robert Parry, Consortium News

05 July 12


ntonin Scalia and the three other right-wing justices who sought to strike down health-care reform cited no less an authority on the Constitution than one of its key Framers, Alexander Hamilton, as supporting their concern about the overreach of Congress in regulating commerce.

In their angry dissent on June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

A portrait of Alexander Hamilton by John Trumbull, 1792.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about “Obamacare” from the distant past of 1788.

Except that Scalia and his cohorts are misleading you. In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”

Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America’s liberties.

In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”

It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

In other words, last week’s dissent from Scalia and the three other right-wingers does not only apply Hamilton’s comments to the wrong section of the Constitution but reverses their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

Twisting the Framers

It is ironic indeed that Hamilton’s words, countering alarmist warnings from his era’s conservatives, would be distorted by this era’s conservatives to spread new alarms about the powers of the Constitution.

Scalia’s distortion also underscores a larger tendency on the Right to fabricate a false founding narrative that transforms key advocates for a strong central government – the likes of Alexander Hamilton and James Madison – into their opposites, all the better to fit with the Tea Party’s fictional storyline.

Of course, Scalia’s deception would be an easy sell to typical Tea Party advocates, whose certainty about their made-up history would be reinforced as they stand this Independence Day with the Framers, complete with tri-corner hats from costume shops and bright-yellow “Don’t Tread on Me” flags.

Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America’s chaotic health-insurance system, as a step toward a despotic scheme that would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

Some Supreme Court watchers even suspect that it may have been Scalia’s intemperate tone that pushed Chief Justice John Roberts from a position of initially rejecting the Affordable Care Act outright as an unconstitutional use of the Commerce Clause to supporting its constitutionality under congressional taxing powers.

The four more liberal justices endorsed the law’s constitutionality under the Commerce Clause but also joined with Roberts on his tax conclusion, thus upholding the law and sending Scalia and his three right-wing cohorts – Anthony Kennedy, Clarence Thomas and Samuel Alito – into a further paroxysm of rage.

What becomes clear in reading the dissent is that not only do the right-wing justices misrepresent the views of the Framers regarding the Commerce Clause, these justices misunderstand a central reality of why the Framers wrote the Constitution in 1787.

The Framers junked the states-rights-oriented Articles of Confederation in favor of the Constitution because they wanted to solve the nation’s problems.

Founding Pragmatists

Led by James Madison and George Washington, the drafters of the Constitution crafted a profoundly pragmatic document, filled not only with political compromises to pull together the 13 squabbling states but looking for practical solutions to address the challenges of a new, sprawling and disparate nation.

The Commerce Clause, which grants Congress the power to regulate interstate commerce, was not some afterthought but rather one of Madison’s most cherished ideas, as Justice Ruth Bader Ginsburg noted in her opinion on behalf of the Court’s four more liberal members.

Citing a 1983 ruling entitled EEOC v. Wyoming, Ginsburg noted that “the Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’”

That problem was a lack of national coordination on economic strategy, which hindered the country’s development and made the nation more vulnerable to commercial exploitation by European powers, which looked to divide and weaken the newly independent United States.

Ginsburg wrote: “Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable, because the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole.”

The Articles of Confederation, which governed the country from 1777 to 1787, had explicitly asserted the “independence” and “sovereignty” of the 13 individual states, making the central government essentially a supplicant to the states for necessary financial support.

After watching the Continental Army suffer when the states reneged on promised funds, General Washington felt a visceral contempt for the concept of sovereign and independent states. He became a strong supporter of Madison’s idea of a stronger central government, including one with the power to regulate commerce.

In 1785, Madison proposed a Commerce Clause as an amendment to the Articles, with Washington’s strong support.

“We are either a united people, or we are not,” Washington wrote. “If the former, let us, in all matters of a general concern, act as a nation which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

Alexander Hamilton, who had served as Washington’s chief of staff in the Continental Army, explained the commerce problem this way: “[Often] it would be beneficial to all the states to encourage, or suppress, a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest.”

Madison himself wrote, regarding the failings of the Articles, that as a result of the “want of concert in matters where common interest requires it,” the “national dignity, interest, and revenue [have] suffered.”

However, Madison’s commerce amendment failed in the Virginia legislature. That led him to seek an even more radical solution – scrapping the Articles altogether and replacing them with a new structure with a powerful central government whose laws would be supreme and whose powers would extend to coordinating a strategy of national commerce.

Building the Framework

As Madison explained to fellow Virginian Edmund Randolph in a letter of April 8, 1787, as members of the Constitutional Convention were gathering in Philadelphia, what was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.”

On May 29, 1787, the first day of substantive debate at the Constitutional Convention, it fell to Randolph to present Madison’s framework. The Commerce Clause was there from the start.

Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation – such as a productive impost [or tax] – counteraction of the commercial regulations of other nations – pushing of commerce ad libitum – &c &c.”

In other words, the Founders – at their most “originalist” moment – understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum – &c &c” notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”

So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.

This pragmatism imbued Madison’s overall structure even as he included intricate checks and balances to prevent any one branch of government from growing too dominant. The final product also reflected compromises between the large and small states and between Northern and Southern states over slavery, but Madison’s Commerce Clause survived as one of the Constitution’s most important features.

However, the Constitution’s dramatic transfer of power from the states to the central government provoked a furious reaction from supporters of states’ rights. The Articles’ phrasing about state “sovereignty” and “independence” had been removed entirely, replaced with language making federal law supreme.

The Anti-Federalists recognized what had happened. As dissidents from the Pennsylvania delegation wrote: “We dissent … because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.”

Winning Ratification

As resistance to Madison’s federal power-grab spread – and as states elected delegates to ratifying conventions – Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.

So, Madison – along with Alexander Hamilton and John Jay – began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.

Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.

For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by the Commerce Clause.

“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”

While ignoring Federalist Paper No. 14, today’s right-wingers are fond of noting Madison’s Federalist Paper No. 45, in which he tries to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.

Rather than view this essay in context – Madison finessing the opposition – the modern Right seizes on Madison’s rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution’s federal powers were contained in the Articles of Confederation, albeit in far weaker form.

In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”

Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

But the Right generally ignores another part of No. 45, in which Madison writes: “The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.”

In his ruling – joining with his fellow right-wing justices in rejecting the application of the Commerce Clause to the Affordable Care Act – Chief Justice Roberts does mention that line from Federalist Paper No. 45. However, he spins Madison’s meaning into a suggestion that the Commerce Clause should never contribute to any controversy.

Looking to the Future

However, what Madison’s comments about the Commerce Clause actually demonstrated was a core reality about the Framers – that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18th Century.

As Hamilton wrote in Federalist Paper No. 34, “we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.

“Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

Indeed, the Commerce Clause was a principal power that Madison crafted to deal with commercial challenges both current to his time and future ones that could not be anticipated by his contemporaries.

There also was a reason why the Framers made the power to regulate interstate commerce unlimited. They wanted to invest in the elected representatives the United States the ability to solve future problems.

In Madison’s day, the nation’s challenges included the need for canals and roads that would move goods to market and enable settlers to travel westward into lands that European powers also coveted. Always a principal concern was how European competition could undermine the hard-won independence of the nation.

Though the Framers could not have envisioned the commercial challenges of the modern world, American businesses remain under intense foreign competition today, in part, because of an inefficient health-care system that imposes on U.S. businesses the cost of health insurance that drives up the price of American goods.

Under the current system, not only do many American businesses pay for their employees’ health care – while most other developed nations pay medical bills through general taxation – but U.S. companies indirectly pick up the cost of the uninsured who get emergency care and don’t pay.

So, a law that makes American businesses more competitive by addressing this “free-rider” problem – and by assuring a healthier work force – would seem to be right down the middle of the Framers’ intent in drafting the Commerce Clause.

No Practicality

In contrasting Justice Ginsburg’s opinion on the Affordable Care Act with Scalia’s dissent, one of the most striking differences is how the Framers are understood: Ginsburg sees them as pragmatic problem-solvers, while Scalia envisions them as rigid ideologues placing individual freedom above practical goals.

The core of the Scalia-written dissent is that the Constitution is NOT about solving problems, but rather following the most crimped interpretation of the words. Indeed, he ridicules Ginsburg for viewing the founding document as implicitly intended to give the elected branches of government the flexibility to address national challenges.

Yet, there was little question from either side that virtually every American participates in the commerce of health care – from birth to death – and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is clearly a national market.

In the dissent, the four right-wing justices acknowledged that “Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercis­ing the powers accorded to it under the Constitution.

“The question in this case, however, is whether the complex structures and provisions of the … Affordable Care Act … go beyond those powers. We conclude that they do.”

Scalia noted that Ginsburg “treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress — among which, it finds, is ‘the Nation’s course in the economic and social welfare realm,’ … and more specifically ‘the problem of the uninsured.’

“The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce.

“None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-­problem power.”

The right-wing justices insisted that the power to “regulate” commerce couldn’t possibly cover something like a mandate to buy health insurance.

Chief Justice Roberts – in his own opinion, which rejected use of the Commerce Clause but then justified the Affordable Care Act under the Constitution’s taxing powers – decided that some of the definitions of the word “regulate” couldn’t be applied because they were not the first definitions in the dictionaries of the late 18th Century.

In an earlier opinion upholding the Affordable Care Act, conservative U.S. Appeals Court Judge Laurence Silberman noted that “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

However, in Roberts’s ruling, the Chief Justice threw out certain definitions for “regulate” — such as “[t]o order; to command” — saying they were not among the top definitions in the dictionaries of the time. Roberts wrote, “It is unlikely that the Framers had such an obscure meaning in mind when they used the word ‘regulate.’”

Needing Health Care

Scalia and Roberts also adopted a very narrow concept of participation in the health-care industry. Though it’s undeniable that virtually all Americans – from birth to death – receive medical care of various types and at different times, the Court’s five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.

Roberts wrote: “An individual who bought a car two years ago and may buy another in the future is not ‘active in the car market’ in any pertinent sense. The phrase ‘active in the market’ cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to ‘regulate the uninsured as a class.’”

But, as Ginsburg noted in her opinion, this comparison is off-point, because a person can plan for the purchase of a car but often is thrust into the medical industry by an accident or an unexpected illness.

Over and over again, the five right-wing justices behaved as if they started out with a determination to reject a constitutional justification under the Commerce Clause and then dreamt up legal wording to surround their preconceived conclusion.

In doing so, they treated the Constitution as some finicky legal document rather than what the Framers had intended, a vibrant structure for solving national problems.

And, as for the Framers’ views regarding mandating American citizens to buy a private product, one can get a good idea of their attitude by examining the actions of the Second Congress in passing the Militia Acts, which mandated that every white male of military age buy a musket and related supplies.

That Congress included actual Founders, such as James Madison. The law was signed by George Washington, another Founder. [See’s “The Founders’ Musket Mandate.”]

So, despite what today’s Right wants you to believe, the Framers were not hostile to a strong central government; they were not big advocates of states’ rights; they were not impractical ideologues contemplating their navels or insisting on some hair-splitting interpretation of their constitutional phrasing.

Rather, they were pragmatic individuals trying to build a nation. They wrote the Constitution specifically so the country could address its pressing problems – and match up competitively with America’s foreign rivals.

Since Justices Scalia, Kennedy, Thomas and Alito don’t have the real history on their side, they apparently saw little option but to make up their own.

To read more of Robert Parry’s writings, you can now order his last two books, Secrecy & Privilege and Neck Deep, at the discount price of only $16 for both. For details on the special offer, click here.]

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there. your social media marketing partner


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+43 # sapereaudeprime 2012-07-05 09:38
Scalia and Alito are little more than 3rd-generation immigrant cowbirds whose only obvious interest in this country is the possibility of raising their chicks in a nest built with the sweat and blood of others. Deport them; they are an embarrassment to everything this country's founding fathers ever stood for.
+72 # fredboy 2012-07-05 09:41
As an attorney focusing on Constitutional law, I've always been fascinated by the judicial ventriloquism regarding the founding fathers. It's much like Biblical interpretation- -you can twist the words to suit most any position. The founders/Biblic al approach is at best a sign of argumentative and reasoning weakness, thus positions must be propped up with alleged lessons from the dead.
+69 # M. de la Souche 2012-07-05 10:13
Amen! It is astonishing to me how many justices are also apparently clairvoyant--wh en it suits them.

What is especially galling about Scalia's dissent, is that his erroneous, ellipsis-laden opinion is now enshrined in U.S. legal code, and can now be easily boiler-plated and perpetuated, ad infinitum, thus making it incredibly difficult to dislodge the actual context and intent of Hamilton's words.

Reasoned argument is a fast-disappeari ng species in this country.
+11 # Michael_K 2012-07-05 11:34
Too true. And it certainly is no example of "reasoned argument" that a law contrived to benefit insurance companies with very little side benefits for the insured, is constantly referred to as a "healthcare reform". It nowhere no how addresses actual healthcare delivery nor does it do anything about its upward spiraling costs except to ensure that they continue to spiral upwards with an added layer of unconscionable profiteering for private "for profit" insurers. The hypocrisy drenching this debate from both sides, the perverted twisted logic, the bold-faced lies... all of it is sick-making and a very visible high-water mark to assess the depravity of our system of government.
+1 # bigkahuna671 2012-07-11 15:15
The most unjust thing is the use of the word "Justice" to describe judges on the Stupreme Court when many of the decisions they make are totally against the actual wording within the Constitution (and that includes the worst of misuses, the 2nd Amendment, which has been twisted until none of the Founding Fathers would recognize what's happened to it) or against the welfare of the people who are supposed to be governed within this so-called democracy. Scalia and Alito are the worst,but the other ultra-conservat ives on the Stupreme Court bench aren't much better.
+43 # Jim W. 2012-07-05 11:42
This will probably sound hopelessly "conservative," but in a very real sense the concept of "shame" has ceased to have any force in political discourse.

In days past, calling someone a "liar" was a fighting word. Now, very few to none on the political right have any reasonable conception of truth and are seemingly untroubled by others' exposure of their dishonesty. They (and I count Justice Scalia high among them) lie as if there was not the slightest opprobruim attached to doing so. It has become simply an expedient. If they are caught, they shrug it off and move on to the next.

This leaves the rest of us playing a high stakes game of "Liars Whack-A-Mole." The problem is the Scalias of the world can make this rubbish up far faster than their duplicity can be exposed.
+20 # ABen 2012-07-05 13:09
When listening to Scalia's comments about the tone and intent of the Constitution, I often get the feeling that he would like to return to the Article of Confederation. I would love to hear his take on the Federalist Papers, but I suspect his interpretations would disturb me greatly.
+10 # mjc 2012-07-05 14:23
Very much like Biblical interpretation, especially in view of the Federalist Papers which sheds a lot of light on the intention of the writers and signers of the Constitution. Scalia, Alito and perhaps Thomas...except I don't think he bothers with any written papers for his opinions...don' t really want to show how various members of the Constitutional Convention actually understood what they were doing in 1787.
+14 # gzuckier 2012-07-05 18:25
Quoting fredboy:
As an attorney focusing on Constitutional law, I've always been fascinated by the judicial ventriloquism regarding the founding fathers. It's much like Biblical interpretation--you can twist the words to suit most any position. The founders/Biblical approach is at best a sign of argumentative and reasoning weakness, thus positions must be propped up with alleged lessons from the dead.

Indeed. But once you've determined that Jesus' message was that material wealth is a badge of God's approval and that helping the poor is socialism and a tool of Satan, reinterpreting the Founding Fathers is just icing on the cake.
+17 # susie01 2012-07-05 09:52
Thom Hartmann wisely revealed the purpose of making the Affordable Health Care Act constitutional because it is a TAX, adding that a simple Senate majority vote of 60 can repeal a tax. GOP only need +4 seats to overtake Senate majority this November.
+19 # cunegonde 2012-07-05 10:16
A simple Senate majority of 60? You mean 50, right?
+7 # ericlipps 2012-07-05 14:28
Quoting cunegonde:
A simple Senate majority of 60? You mean 50, right?

Unfortunately, no, I think not. These days, one needs a majority of 60 to overcome the otherwise inevitable use of the filibuster--and never mind that the filibuster is nowhere authorized in the Constitution.
+5 # AMLLLLL 2012-07-05 21:12
Yeah, 60 is the new 50. Go figure. But the Dems shot their chance way back when to outlaw the filibuster for the next session.
+5 # Gevurah 2012-07-05 23:26
Furthermore, since the Senate decided -- when? why? not to make the filibusterer actually STAND there and keep the floor indefinitely, whichever Party doesn't have a filibuster-proo f majority has to kiss a great deal more *** to get anything done. And even then the current majority can't get anything done because the intent of the minority is to block ANYTHING that might benefit the incumbent in the White House. Screw the people whom they swore to serve.
+33 # mitchell donian 2012-07-05 10:04
Scalia appears to be mentally challenged or in a world of regesive values because he asks us to go back to the "orginal thinking" on Constitutional law which would have present day rules of conduct put us back in the hands of slaveholders... with the exception of John Adams. Scalia should not be taken seriously. He is a throwback, thus a throwaway.
+20 # Michael_K 2012-07-05 11:36
He isn't mentally challenged at all, he just invests minimal mental effort in his criminal endeavours. Why should he make a great effort when the sheeple are begging to be fleeced?
+38 # Buddha 2012-07-05 10:14
Isn't this right up there in the Breitbart school of pushing GOP narrative? Selective editing to make it look like someone said something 180 degrees different than they really said, all to deceive the rubes?
+24 # Rita Walpole Ague 2012-07-05 10:51
Confession: Irish cousins have diagnosed me as 'fey'. Translation - very intuitive, and at times second sighted.

However, one did not need to be 'fey' to see what was coming when Reagan was elected (the beginning of end of rule of law, with appointments of l%'s puppets vs. real McCoy jurists looming). I held an Irish wake the night Reagan was elected.

Then came the appointment of Scalia. Protest I did, along with a number others who also have legal backgrounds, at an old courthouse turned museum, based on Scalia's so obviously conveying anything but juris prudence.

+27 # cy31b 2012-07-05 10:57
Because of Roberts' duel decisions regarding the ACA first part of declaring it a tax instead of its proper positon in the Commerce clause, we now have the modern states rights protagonists raising their power to circumvent the law. Twenty-six Republican governors can opt to disobey the intent of the ACA and continue the chaos of healthcare. Mr. Romney promises to make it even worse if he is elected, so we should remember to vote in opposition to his intentions. Let's not forget that Republicans have been thwarting Roe v. Wade for forty years and often in violent ways. They must not be allowed to take control of government again.
+31 # Ken 2012-07-05 11:27
Remember the Romney ad that quoted Obama, out of context, as saying “If we keep talking about the economy, we’re going to lose”? Then it turned out Obama had been quoting McCain, to illustrate how McCain had been trying to avoid talking about the economy. Compare that to Scalia quoting Hamilton, who had actually been mocking what the enemies of the Constitution were saying. When Supreme Court Justices begin copying the most disreputable tactics politicians employ in campaign ads, we have to understand that we are in new political and legal territory. Justices have been partisan before, but we evidently now have four who disdain to disguise their bile with even an effort to achieve historical accuracy.
+15 # jwb110 2012-07-05 11:31
The right wingers on the Court have turned the Constitution in the Torah writing commentary into the margins of the document and do it mostly by misrepresenting the truth.
+7 # KittatinyHawk 2012-07-05 11:32
Deport these creeps. Send them to the War and their kids. Let's see them hold up the Constitution in a whole new way. Let's see them do something for this Country.

States ...Pa has just cancelled Welfare. Nice they took raises and now shut down welfare. Many with physical and mental disabilities are cut because the lazy slobs do not go out and check the recipients, who they are or where they live. Yes lets cut all the heads off for a few.

Would like to see tables turned All those who wish that people are off medical, welfare I hope you live in gated, secured homes....becaus e this isn't going to be pretty.

I see Pa number one in crime by I just want to thank all the slime bags for their part, esp Gov Corbett. If he cannot poison us with bad water, he is going to cut off any assistance to you. Can't find a job...good, Corbett and Republicans do not care. So I hope those who need money to support their families start publishing the Map of Republicans. Perhaps it is time for what goes around to come around. Why should we pay for the Corrupt, that goes for CU I hope a list of who you are goes out amongst the protestors The next War is not going allow ween nukes, poisonous earth drillings, mass amounts of chemicals .... I see no mercy from man no less Mother Nature. Hope you all had a great Fourth....I hope those in Government get some brains, the Churches start getting some Jesus
+14 # MarjG 2012-07-05 11:39
As always, the bottom line and making sense. Thanks, Mr. Parry. What do we do about the disinformation, the lies? Romney doesn't care about what he says, or doesn't say, what he does, because the millions in ads are there to manipulate. The ID laws to capture the rest of the votes. Discouraged after the holiday with supposedly high info voters who have a different set of facts than the truth. Wanting to reward the thugs for choosing party over country these last few years-and longer. This election is still the Constitution, and voters don't get it!
+22 # tabonsell 2012-07-05 12:47
This is only the most recent incident in which Scalia demonstrates his concept of "original intent" is total nonsense.

Government use of the Commerce Clause hasn't expanded beyond its "original intent;" it's interstate and international commerce that has expanded. At the founding, this was a nation in which most of the economy was local agrarian based, but now is a nation in which corporations amount to 85-90% of the economy. So naturally the scope of the Commerce Clause would also increase. (Use the 85-90% figure because the value of corporate stock is about $13 trillion while the economy is approaching $15 trillion.)

If right-wingers want to lessen the impact of the Commerce Clause they only have to break up the corporations so that they wouldn't engage in interstate or international commerce. Ain't gonna happen.

Another--off topic--issue in which "original intent" is at odds with the Constitution is the right to keep and bear arms. Article I, Section 8, says one of the functions of the militia when in service to the federal government is to "suppress Insurrections." The right now tries to tell us that the "original intent" of the 2nd Amendment is to keep Americans armed so they can rise up against a "tyrannical" federal government. I.E. insurrection.

Scalia appears to be another one of those "patriot" Americans who love our Constitution but hate everything it says.
-25 # MidwestTom 2012-07-05 12:55
Scalia and friends are simply undoing what they and many law scholars viewed as earlier over-reavhing by the Supreme Court. At the core of their actions is a belief that elected officials, not the courts, should be making laws. The courts job is to simply interpret the legislatively created laws.
+23 # Texas Aggie 2012-07-05 13:22
Then why is Scalia trying to knock down the law that was written by elected officials? Why doesn't he restrict himself to interpreting the PPACA law?

No. Scalia et al. are in a jihad against anything that may run counter to their regressive philosophy and that harms their buddies in the 1%.
+2 # tabonsell 2012-07-06 11:37
It's not all that that simple.

Legislatures can make all the laws they want, but those laws also have to be authorized by the Constitution.

In the Federalist Papers Alexander Hamilton said the courts' duty "must be to declare all acts contrary to the manifest tenor of the Constitution void." Voiding an unconstitutiona l law is interpreting; interpreting the law to see if it agrees with constitutional powers. Courts also interpret the Constitution to see if it allows such law to be made.

Our concepts of jurisprudence were inherited from the British, who lived by this doctrine since the 1610 Dr. Bonham decision in which Sir Edward Coke wrote that any law contrary to the Constitution (Britain doesn't have a written one) must be declared void.

So when pre-Scalia courts ruled things like racial segregation void they were only interpreting the 14th Amendment, their job.
+17 # Texas Aggie 2012-07-05 13:20
I have no idea how Scalia ever got the reputation for being a sharp legal mind. This is but one more nail in the coffin of that myth. As someone once said in another context, if you have to prevaricate in order to make your point, there is something wrong with your point.

In Scalia's case, however, I don't think he is prevaricating. He just didn't understand that Hamilton was using that statement as an argument against Scalia's position, not for it. It takes more intelligence than he has to go beneath the surface meaning of what Hamilton wrote.
+6 # AMLLLLL 2012-07-05 21:19
Aggie, I agree; Scalia thinks he's smart the way Bush did. His broccoli argument should have been shut down by the Solicitor General: When broccoli becomes 12% of GDP it will be worth arguing.
+8 # tabonsell 2012-07-06 11:40
Scalia got the reputation as a brilliant legal mind because his decisions were so esoteric and convoluted that they were hard to understand by anyone, including Scalia.
-39 # brucbaker 2012-07-05 13:24
THE ONLY people MENTALLY CHALLENGED are those getting their HISTORY Second and third hand from LIBERALS and PROGRESSIVES.

There are still first hand writings by ALL the founders and believe it or not .. it is NOT the story you learned in high school or college, so don't get get all preachy and from the pulpit announcing that SCALIA doesn't know what he is talking about when YOU DISAGREE WITH HIM.

Fact is .... if you follow the law as prescribed by the CONSTITUTION... without the LIBERAL SPIN, the DEMOCRAT delusional interpretation .. Scalia is perfectly right, but ... his DISSENTING OPINION ... is HIS OPINION, not yours, not mine, not the opinion of the rest of the citizens of the USA.

Put written opinions into persective and realize ... even SUPREME COURT OPINIONS/ Judgements ... can be overturned. Maybe not this week, or this year .. but make the case logically, by the law as understood by the present generation ... and things may change.

At the MOMENT ... LOONEY TOONS for avoiding responsibility is the Obama-care decision .. throwing it back into the CONGRESS, the Senate and the HOUSE, for RECONCILIATION for a TAX. Let's see how it plays out. Maybe Scalia is right .. and Roberts was wrong.

I think when COMMON SENSE returns, someday, the good things in Obama-care will be legislated under programs that already exist. That's my opinion....

Obama-Care must DIE...
+6 # carneyva 2012-07-06 13:34
Is your shift button sticking?
+7 # mjc 2012-07-05 14:15
A great dissertation, and one many of us should commit to memory so that we can respond to some of the ideologues, hard right conservatives who do not want our national government to overrule any possible projects these conservatives have in mind to protect the wealthy and well-off.
+18 # vgirl1 2012-07-05 14:20
Right wingers lie and make up facts, because they know the truth is NOT on their side. It obviously does not matter whether they are TPrepublican state and local politicians such as governors and state legislators, TPrepublican national legislators in the US Congress, or TPrepublican candidates and party leaders at all levels.

When one cannot win on truth and ideology, one has to make it up. Indeed, the TPRepublican hypocrites have, for a long time now, all proven that facts and truth no matter how significant are to them irrelevant.

But what is doubly sad is that when the right wing justices of the SCOTUS can hob nob and cozy up to those whose issues will come before the court and not recuse themselves from such decisions, it shouts to us loudly and clearly that there is no integrity among them.
+11 # vgirl1 2012-07-05 14:58
I should also add that I meant to specifically point out that this just goes to prove that even the right wing justices of the SCOTUS have shown they are not above the TPRepublican penchant for lying.
+11 # heraldmage 2012-07-05 16:19
An excellent review. Put a star next to the title in the archives so it can be easily reviewed in the future.
+15 # Edward Mainland 2012-07-05 17:22
Scala has demonstrated few of the characteristics of a judge or jurist and almost always reveals himself as a preposterously dogmatic ideologue willing to twist facts and truth to suit his misconceptions. Thanks to RSN for again making this very clear.
+16 # tomo 2012-07-05 19:47
It is really difficult to know whether Scalia is malignant or just stupid. Either way, he's done a great deal to destroy the credibility of the Supreme Court.
+4 # DrEvel1 2012-07-06 19:06
Thank you, Robert Parry!

"Original intent" is a respectable position to be argued as a basis for constitutional interpretation. It's not one that I would practice; I tend to prefer the approach offered by Jefferson (and inscribed on the wall of his Memorial in DC): "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

But if "original intent" is to be argued as a basis, it must be argued honestly. Scalia's tendency to misrepresent original intent, well documented in this article, is intellectually dishonest. And it is all the more reprehensible since, given his intelligence and undoubted rhetorical skills, he must know precisely how much he is misrepresenting the Founders, and not care, as long as his ideology prevails. What I find most pathological, however, is his persistence with this practice in a losing cause.
+2 # Bill Clements 2012-07-08 12:18
Gratitude to Robert Parry for an excellent lesson in American history. All of us should possess some measure of this same history, especially when you've got individuals like Scalia sitting on our Supreme Court.

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