The Front Page Cover
2016 The truth is the gold of today
Featuring:
A Gaping Hole on the Court
Adam Freedman
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Justice Antonio Scalia — Farewell Nino
Our Republic has lost one of its most articulate defenders of Liberty and Rule of Law: Justice Antonio Scalia.
"Nino" to his close friends, Justice Scalia was the greatest Supreme Court jurist of modern times, and one of the greatest of all time. To say he will be missed is a gross understatement. In the words of his friend Paul J. Larkin Jr., a fellow at The Heritage Foundation, "More than 100 men and women have been justices of the Supreme Court. All decided the outcome of individual cases and made small changes in the law [but few] changed the course of the law. ... Scalia taught us that the law matters, that the law is the written word, and that the written word takes its meaning from how history understands it, not what we wish it might mean."
Justice Scalia was nominated by President Ronald Reagan in 1986 and affirmed soon thereafter by the Senate. He adhered strictly to the doctrine of constitutional originalism — the standard our Founders prescribed, reading the plain language of the U.S. Constitution for its original intent, then applying the historical context of the drafters when the plain-language meaning is not readily apparent. His constructionist interpretation led to a modern juridical revolt against activist judges, those who, as Thomas Jefferson warned, would treat "the Constitution [as] a mere thing of wax ... which they may twist and shape into any form they please." Scalia was an effective check on those activists endeavoring to usurp individual freedoms by promoting the errant notion of a "living constitution," treating it as "a mere thing of wax."
As a result of the more-than-century-long assault on the Constitution by activist and statist judges, Scalia's "back-to-the-future" return to traditional adherence to its original meaning was seen by many as "radical." On the contrary, it was simply rational — a quality the Supreme Court is in short supply of these days, especially now that it has lost its chief exponent of rationality.
The best way to pay proper tribute to Justice Scalia is by citing some of his public remarks and opinions from the bench (cases are noted below) in affirmation and defense of our Constitution.
"Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral. (Barnes v. Glen Theatre, Inc., 1991)
"To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American." (Adarand Constructors v. Pena, 1995)
"The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize." (Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 1996)
"A Bill of Rights that means what the majority wants it to mean is worthless." (2000)
"It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily." (2003)
"If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong." (2005)
"If you think aficionados of a 'living constitution' want to bring you flexibility, think again. ... If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless." (2005)
"The argument of flexibility goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. "But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things." (2006)
"Undoubtedly some think that the Second Amendment is outmoded... [W]hat is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." (District of Columbia v. Heller, 2008)
"Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long imposing these demands on society." (2011)
"A man who has made no enemies is probably not a very good man." (2012)
"Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved... And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent." (King v. Burwell, 2014)
"Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves... The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis." (Obergefell v. Hodges. 2015)
Justice Scalia's death will change the dynamic of the current presidential primaries — indeed, the entire election cycle. We've argued before how important this election really is when it comes to nominations. That prediction is now more acute.
When nObama nominates a new court candidate and attempts to ram that nominee through the Republican-led Senate, that will create considerable discord. Senate Majority Leader Mitch McCon-nell has stated he opposes confirming a new justice until the election because "the American people should have a voice in the selection of their next Supreme Court Justice." Indeed, in more than eight decades, no president has nominated a candidate for the Supreme Court in a presidential election year.
Within hours of Scalia's death, Democratic National Committee CEO Amy Dacey insisted, "Barack nObama, has been very clear: He's going to fulfill his constitutional obligation and nominate our next Supreme Court justice. ... [C]onservatives in Congress should allow President nObama to do what is his right and responsibility — name the next Supreme Court justice."
Why? nObama has not "fulfilled his constitutional obligations" in any other respect, and he has never honored his oath "to Support and Defend" our Constitution and the Liberty it enshrines.
It is notable that, of the 16 presidents who served in the Senate, only one, Barack nObama, endeavored to filibuster a Supreme Court nomination — the 2006 nomination of now-Justice Samuel Alito. In 2007, more than 18 months before the 2008 presidential election, Demo Sen. Chuck Schumer declared, "We should not confirm any Bush nominee to the Supreme Court."
As for Justice Scalia himself, he once remarked, "I would not like to be replaced by someone who immediately sets about undoing what I've tried to do for 25–26 years. I mean, I shouldn't have to tell you that, unless you think I'm a fool."
Today, our thoughts and prayers are with Justice Scalia's wife, Maureen, their nine children, and the rest Justice Scalia's loved ones, as we remember and honor his legacy. Nino, you will be missed: "Well done, good and faithful servant." (Matthew 25:23). -The Patriot Post
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A Disaster Worse Than Libya
Cliff Kincaid
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Not Conservative By What Standard,
Says Who?
Rick Wells.
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ISIS Gets Syrian Air Defense System
Bill Gertz
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{freebeacon.com} ~ Islamic State terrorists recently captured several Syrian air defense missiles, raising concerns the weapons could be used against U.S. and allied aircraft, according to defense officials... Several SA-6 mobile anti-aircraft missiles were captured near the northeastern Syrian city of Dayr Az Zawr, where in recent weeks U.S. and allied aircraft have conducted airstrikes against oil and gas facilities controlled by ISIS, Pentagon officials told theWashington Free Beacon. Four missiles and two tracked, mobile SA-6 launchers were captured by the group, the officials said, adding that it is uncertain whether the associated fire control radar and other equipment needed to fire the missiles were captured. http://freebeacon.com/national-security/isis-gets-syrian-air-defense-system/?utm_source=Freedom+Mail&utm_campaign=329ccfe44a-WFB_Morning_Beacon_02_15_162_14_2016&utm_medium=email&utm_term=0_b5e6e0e9ea-329ccfe44a-45611665.
Federal Government Employee tells Miner that His Authority Supersedes the Constitution!
Tim Brown
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{eaglerising.com} ~ The Bureau of Land Management have been acting tyrannically for decades. As an unconstitutional agency, we have seen them in recent years not only violating the Constitution and the rights of the people... but we've also seen them take an armed violent stand against ranchers, both in Nevada and Oregon. All of it is unlawful. I want to share story that I ran across concerning two BLM employees and a miner in Idaho from 2012 during some research on the BLM. In a confrontation with the BLM, the Idaho miner asked, "You are telling me that you supersede the Constitution of the united States?" The BLM employee smugly replied, "Yes, I do." Nicole Crossman, one of the founders of the South West Idaho Mining Association, and her husband John, along with some others were at the family's camp on July 11th, 2012 when they were approached by two BLM employees, who were identified as Ann Marie Sharkey and Jeff Weiss. Video evidence, which has now been removed and another video made private, shows what seems to be a friendly encounter between the employees and the Crossmans. However, once Sharkey spotted mining incident tools, she demanded that Mrs. Crossman produce identification. The text of the conversation comes from Mrs. Crossman. http://eaglerising.com/30219/federal-government-employee-tells-miner-that-his-authority-supersedes-the-constitution/.
NASA censors ‘Jesus’ from emails to
make Muslim outreach top priority
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{themuslimissue.wordpress.com} ~ NASA is not so scientifically enlightened after all. This is how Muslims silently exercise their stealth jihad. Bit-by-bit, one stone at a time, their influence to corrode and bring the infidel down, until the kafir has no fundation to stand on, leads them closer to their goal... Muslims always pretence argue that Jesus is a prophet in Islam and that Muslims believe in Jesus. It’s part of the taqqiyya appeasement method when dealing with the infidel. So why then are they so eager to ban all traces of Christianity and all mentions of Jesus, unless it insults them? Demanding a ban on Christian symbols, words, practices would then constitute blasphemy. But reality is, Jesus is derided in Islam. Therefore, his name and followers must be avoided at all costs. Liberty Institute attorneys issued a demand letter on Monday to the legal team at NASA Johnson Space Center (JSC) in Houston, Texas after it banned a group of civil servants, employees and contractors from using the name “Jesus” in email announcements..
State Department upgrades 84 new
Clinton emails to classified
SARAH WESTWOOD.
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First Muslim-Majority City In America
Should Strike Fear In The Hearts
Of Every American
Shoebat Foundation
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{shoebat.com} ~ In the state with the largest Muslim population in America, Hamtramck, near Detroit, has just elected a Muslim-majority city council, with more Islamocentric changes to come... Not surprisingly, a lot of Muslims refused to comment on camera, fearing backlash from a nation increasingly fearful and suspicious of its Muslim residents. MediaMatters A rep from the Census Information Center said that the predominantly Muslim groups don’t intermingle much because of language barriers and the Muslim supremacist goal to create sharia-influenced parallel societies that don’t assimilate with the native population. http://shoebat.com/2016/02/12/michiganistan-first-muslim-majority-city-in-america-should-strike-fear-in-the-hearts-of-every-american/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+shoebat+%28Walid+Shoebat%29.
Bill Whittle's 'The Criminal
Arrogance of Hilly Clinton'
Truth Revolt
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Why ‘NO’ Is The Only Answer!
Tony Katz.
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{dailycaller.com} ~ The death of Supreme Court Justice Antonin Scalia at 79 has been a gut punch for those who follow the Constitution... and a reason for glee from those who celebrate the death of anyone who disagrees with them. Also, allegedly, it has created constitutional crisis of monumental proportions as Democrats demand the GOP-controlled Senate confirm whomever President nObama decides to nominate to fill the position. But there is no crisis. There is only one word. No. No, we will not consider any of nObama’s nominees. No, we won’t vote them. No, we don’t care what you say about us on MSNBC. No, we don’t care if you claim this is for political reasons and political purposes. No, we don’t care if you campaign on it. Why am I so confident in how clearly and effortlessly the GOP should say “No?” Because the Democrats have already done it. http://dailycaller.com/2016/02/15/no-is-why-america-elected-republicans/.
China Reclaimed Land for South China
Sea Anti-Submarine Helicopter
Base Near Vietnam
Sam LaGrone
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{news.usni.org} ~ The People’s Liberation Army is building a South China Sea helicopter base that could be a key node in a Chinese anti-submarine warfare (ASW) network across the region... according to new satellite images and analysis shared with USNI News on Friday. The imagery — first published on news site The Diplomat — show what appears to be extensive reclamation work to build could easily be an ASW helicopter base on Duncan Island, about 200 miles from the coast of Vietnam in the disputed Paracel Islands. The base “could signal a step-up in China’s ASW capabilities across the South China Sea. A network of helicopter bases and refueling stops scattered across the South China Sea, using no more than the bases China is already known to be building, would make almost any coordinate in the sea reachable,” read the analysis by Victor Robert Lee..
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A Gaping Hole on the Court
Adam Freedman
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At stake is whether the Court will be reconstituted with a liberal majority intent on reversing Justice Scalia’s extraordinary legacy. With three decades on the bench, Scalia was the longest-service member of the current Court. Appellate judge Richard Posner, who in recent years became a harsh Scalia critic, described him in 2011 as “the most influential justice of the last quarter century.”
At stake is whether the Court will be reconstituted with a liberal majority intent on reversing Justice Scalia’s extraordinary legacy. With three decades on the bench, Scalia was the longest-service member of the current Court. Appellate judge Richard Posner, who in recent years became a harsh Scalia critic, described him in 2011 as “the most influential justice of the last quarter century.”
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When he became an associate justice in 1986, Scalia’s judicial philosophy lay on the outskirts of the Court and of the American legal establishment. Over time, however, his commitment to textualism and originalism gained traction, even among the Court’s more liberal members. As a textualist, Scalia maintained that courts must follow the clear language of statutes and resist the temptation to import their policy preferences into the law—the defining sin of judicial activists. He was contemptuous of efforts to interpret laws via “legislative history,” a grab-bag of self-serving congressional utterances from which a clever judge could usually extract some statement supporting his or her preferred outcome. As the New York Times’s Adam Liptak reports, Scalia’s campaign against legislative history “was largely successful. Advocates and other justices rely on legislative history sparingly these days.”
When he became an associate justice in 1986, Scalia’s judicial philosophy lay on the outskirts of the Court and of the American legal establishment. Over time, however, his commitment to textualism and originalism gained traction, even among the Court’s more liberal members. As a textualist, Scalia maintained that courts must follow the clear language of statutes and resist the temptation to import their policy preferences into the law—the defining sin of judicial activists. He was contemptuous of efforts to interpret laws via “legislative history,” a grab-bag of self-serving congressional utterances from which a clever judge could usually extract some statement supporting his or her preferred outcome. As the New York Times’s Adam Liptak reports, Scalia’s campaign against legislative history “was largely successful. Advocates and other justices rely on legislative history sparingly these days.”
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In the area of constitutional law, Scalia was the Court’s leading originalist: he sought to interpret the Constitution’s text as it would have been understood by those who ratified its provisions. Here again, Scalia’s influence is palpable. Though the Court’s liberal justices differed with him in their conclusions, they increasingly couched their arguments in originalist terms. By the time Scalia wrote the majority opinion in the 2008 case of Heller v. District of Columbia, which held that the Second Amendment establishes an individual right to bear arms, the entire court was engaged in a debate over how the Founders understood the amendment’s somewhat enigmatic language. References by Supreme Court justices to the “Living Constitution” theory—that the meaning of the Constitution must change to keep pace with the times—are now vanishingly rare.
In the area of constitutional law, Scalia was the Court’s leading originalist: he sought to interpret the Constitution’s text as it would have been understood by those who ratified its provisions. Here again, Scalia’s influence is palpable. Though the Court’s liberal justices differed with him in their conclusions, they increasingly couched their arguments in originalist terms. By the time Scalia wrote the majority opinion in the 2008 case of Heller v. District of Columbia, which held that the Second Amendment establishes an individual right to bear arms, the entire court was engaged in a debate over how the Founders understood the amendment’s somewhat enigmatic language. References by Supreme Court justices to the “Living Constitution” theory—that the meaning of the Constitution must change to keep pace with the times—are now vanishingly rare.
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Another Scalia decision, Employment Division v. Smith, held that individuals cannot use the First Amendment’s “free exercise” clause to demand exemptions from laws on religious grounds. That ruling continues to split conservatives, who generally support robust protection for religious liberties, particularly in the context of today’s culture wars. The Religious Freedom Restoration Act, or “RFRA”—a favorite among conservatives—was enacted as a direct response to Smith.
Another Scalia decision, Employment Division v. Smith, held that individuals cannot use the First Amendment’s “free exercise” clause to demand exemptions from laws on religious grounds. That ruling continues to split conservatives, who generally support robust protection for religious liberties, particularly in the context of today’s culture wars. The Religious Freedom Restoration Act, or “RFRA”—a favorite among conservatives—was enacted as a direct response to Smith.
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Smith demonstrates an important point about Scalia’s intellectual rigor: he regularly found himself at odds with conservatives because of his commitment to following the letter of the law. If the law leads to unwelcome consequences, Scalia insisted, it’s up to Congress to change it or to the people to amend it in the case of the Constitution. Thus, in 2004’s Hamdi case, he opposed the Bush administration’s position that an American citizen who had allegedly taken up arms with the Taliban could be held indefinitely without charges. In other decisions, Scalia has sought to strengthen the rights of the accused, notwithstanding his strong personal preference for law and order. In Crawford v. Washington (2004), for example, he held that criminal defendants have a right to live testimony from the witnesses against them, even when other forms of testimony might be available.
Smith demonstrates an important point about Scalia’s intellectual rigor: he regularly found himself at odds with conservatives because of his commitment to following the letter of the law. If the law leads to unwelcome consequences, Scalia insisted, it’s up to Congress to change it or to the people to amend it in the case of the Constitution. Thus, in 2004’s Hamdi case, he opposed the Bush administration’s position that an American citizen who had allegedly taken up arms with the Taliban could be held indefinitely without charges. In other decisions, Scalia has sought to strengthen the rights of the accused, notwithstanding his strong personal preference for law and order. In Crawford v. Washington (2004), for example, he held that criminal defendants have a right to live testimony from the witnesses against them, even when other forms of testimony might be available.
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Much of Scalia’s influence came through his dissenting opinions. Well-researched and persuasively written, his dissents planted seeds that often bore fruit in later cases. In the 1988 Morrison v. Olson case, Scalia found himself in a minority of one, arguing against Congress’s power to vest executive powers in bodies outside the president’s control in that case, the independent counsel. But his views eventually carried the day in 2010’s Free Enterprise Fund v. PCAOB, in which the Court held that Congress couldn’t create an executive body that was effectively insulated from presidential control.
Much of Scalia’s influence came through his dissenting opinions. Well-researched and persuasively written, his dissents planted seeds that often bore fruit in later cases. In the 1988 Morrison v. Olson case, Scalia found himself in a minority of one, arguing against Congress’s power to vest executive powers in bodies outside the president’s control in that case, the independent counsel. But his views eventually carried the day in 2010’s Free Enterprise Fund v. PCAOB, in which the Court held that Congress couldn’t create an executive body that was effectively insulated from presidential control.
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Even when he wasn’t successful, Scalia’s dissents were prescient—and often biting. In Lawrence v. Texas, Scalia rightly predicted that the Court’s declaration of a right to engage in consensual homosexual relations would lead to a right to same-sex marriage. In the case that established that right—Obergefell v. Hodges—Scalia mocked the soaring rhetoric of Justice Anthony Kennedy’s majority opinion, declaring that those who signed on to it ought to “hide their head in a bag.”
Even when he wasn’t successful, Scalia’s dissents were prescient—and often biting. In Lawrence v. Texas, Scalia rightly predicted that the Court’s declaration of a right to engage in consensual homosexual relations would lead to a right to same-sex marriage. In the case that established that right—Obergefell v. Hodges—Scalia mocked the soaring rhetoric of Justice Anthony Kennedy’s majority opinion, declaring that those who signed on to it ought to “hide their head in a bag.”
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In other contexts, Scalia could work with the Court’s liberals. Unlike associate justice Clarence Thomas—the Court’s most intellectually consistent originalist—Scalia made concessions to stare decisis, the principle that prior court decisions shouldn’t be disturbed unless there is a compelling reason to do so. On that basis, he generally supported the New Deal Court’s expansive reading of the Commerce Clause—refusing to strike down the Controlled Substances Act in Gonzalez v. Raich (2004). He also refused to disturb the judge-made doctrine of substantive due process—which is said to “incorporate” certain substantive guarantees into the due-process clause of the Fourteenth Amendment. Thomas disagreed on both counts, but Scalia’s position probably gave him more credibility with the Court’s liberals.
In other contexts, Scalia could work with the Court’s liberals. Unlike associate justice Clarence Thomas—the Court’s most intellectually consistent originalist—Scalia made concessions to stare decisis, the principle that prior court decisions shouldn’t be disturbed unless there is a compelling reason to do so. On that basis, he generally supported the New Deal Court’s expansive reading of the Commerce Clause—refusing to strike down the Controlled Substances Act in Gonzalez v. Raich (2004). He also refused to disturb the judge-made doctrine of substantive due process—which is said to “incorporate” certain substantive guarantees into the due-process clause of the Fourteenth Amendment. Thomas disagreed on both counts, but Scalia’s position probably gave him more credibility with the Court’s liberals.
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Scalia’s intellect and his appreciation of the political realities of the Court made him the most effective conservative jurist of his time. His death leaves a gaping hole, and it may signal the beginning of a period of drastic change on the Court. Liberal lion Ruth Bader Ginsburg a pancreatic-cancer survivor is 82; Kennedy, the “swing vote” justice, is 79. Whether the next generation of justices builds upon or reverses Scalia’s legacy depends entirely on the outcome of the election in November.
Scalia’s intellect and his appreciation of the political realities of the Court made him the most effective conservative jurist of his time. His death leaves a gaping hole, and it may signal the beginning of a period of drastic change on the Court. Liberal lion Ruth Bader Ginsburg a pancreatic-cancer survivor is 82; Kennedy, the “swing vote” justice, is 79. Whether the next generation of justices builds upon or reverses Scalia’s legacy depends entirely on the outcome of the election in November.
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