Law Should be Interpreted by Yesterday’s Mores Not Today’s!

Nazi Antonin ScaliaJustice Antonin Scalia was in Colorado over the weekend, doing his thang. He gave a talk titled, “Mullahs of the West: Judges as Moral Arbiters.” What strikes me about this is how clueless Scalia is about what he (or any other judge) does. According to the Aspen Times, he said that what led to the Nazis was that in the 1930s, judges interpreted the laws in ways that reflected “the spirit of the age.” Basically, he’s saying that relativism is what caused Nazism.

This is not a new idea. In fact, this is exactly are argument of The Ominous Parallels. In that book, Leonard Peikoff claims that because of the relativism of Kant, Hegel, and Schopenhauer, Germany was primed to accept any old ideology. Peikoff is a smart guy, but by that time he was living fully under the intellectual shadow of Ayn Rand. His understanding of those three great philosophers bears no resemblance to what I’ve read; they weren’t relativists. And why it took over a hundred years for all this supposed relativism to sink into the German psyche is never explained. Regardless, Peikoff’s book is polemics, not history or philosophy. And the same is true of Scalia.

My big problem with Scalia’s observation is not that it is wrong. The problem is that his argument has nothing to do with finding the truth. What he means but will not come right out and say is that we should not interpret laws in ways that reflect the spirit of this age; we should interpret them in ways that reflect the spirit of some other age. And that age is whenever it appealed to Scalia’s prejudices.

Note that at least the spirit of this age is a single time. Scalia has no problem reflecting the 18th century sometimes or the civil war or the roaring 20s. It really doesn’t matter. The truth is whatever he thinks. Because he is smart, he can easily see the intellectual gymnastics that others perform to justify their own beliefs. But he is utterly clueless about his own gymnastics. Either that, or he is just another “might makes right” conservative who has no problem lying if it will help his cause.

As I’ve noted in the past, Scalia isn’t always wrong. Recently, in Maryland v. King, he argued against the majority that claimed it was fine for the police to do unwarranted DNA testing. Of course, when it came to unwarranted DUI checkpoints in Michigan Dept. of State Police v. Sitz, Scalia was fine with them. The point is not that Scalia is right or wrong about any given issue; it is that Scalia is ruled more powerfully by his prejudices than most other jurists. So it is ironic that he would publicly complain about others for something that he does in a far more pernicious way.

H/T: Steve Benen

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

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