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Tuesday, April 18, 2006

A real reason to pay attention to Scalia. No hand gestures here.

Now, first off, I really don’t want to start a big debate on this so close to finals and all, but The American Enterprise has a transcript of a speech Justice Scalia gave at the American Enterprise Institute that is definitely worth reading. He explains his position on foreign law, where it should apply (yes, this is Scalia), where it should not, and why some find it so appealing:

"The second reason foreign law is like­ly to be used increasingly is Sir Edmund Hillary’s reason—because it’s there. Let’s face it: it’s pretty hard to put together a respectable number of pages setting forth reasons for newly imposed Consti­tutional prescriptions or prohibitions (as a legal opinion is supposed to) that do not at all rest upon one’s moral senti­ments, one’s view of natural law, one’s philosophy, or one’s religion. Decisions on such matters, whether taken demo­cratically by society or undemocratically by courts, often have nothing to do with logic or analysis. So judicial opinions will be driven to philosophic or poetic explanations—such as appeared in the Supreme Court decision not so long ago asserting that at the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and of the mystery of human life."

Scalia loves to bring out that last line. I do wonder how the other justices, those who joined the Casey opinion from which it came specifically, feel about his doing so, especially given the Court's apparently quite collegial atmosphere.


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