sexta-feira, 7 de janeiro de 2011

24 anos de indicação de Antonio Scalia

O Prof Carlos Bruno envia a matéria abaixo que é a entrevista de Antonio Scalia pelos 24 anos de sua indicação para Corte Suprema. Segue também o endereço eletrônico jornal americano que repercute a entrevista dada. Uma integrante de movimento feminista americano reportado no citado jornal no endereço eletrônico critica duramente a opinião do Justice Scalia. Pois, para em matéria de certos direitos, é o Legislativo que tem de conceder. A feminista fulmina, se o legislativo não proteger a mulher em termos de discriminação, a corte nada fará?

Legally Speaking
The Originalist

Photo by S. Todd Rogers
Justice Antonin Scalia

January 2011
Last October marked the 24th anniversary of Justice Antonin Scalia's
appointment to the U.S. Supreme Court. Well known for his sharp wit as
well as his originalist approach to the Constitution, Justice Scalia
consistently asks more questions during oral arguments and makes more
comments than any other Supreme Court justice. And according to one
study, he also gets the most laughs from those who come to watch these
arguments. In September Justice Scalia spoke with UC Hastings law
professor Calvin Massey. *Q. How would you characterize the role of the
Supreme Court in American society, now that you've been a part of it for
24 years?*
I think it's a highly respected institution. It was when I came, and I
don't think I've destroyed it. I've been impressed that even when we
come out with opinions that are highly unpopular or even highly---what
should I say---emotion raising, the people accept them, as they should.
The one that comes most to mind is the election case of /Bush v. Gore./
Nobody on the Court liked to wade into that controversy. But there was
certainly no way that we could turn down the petition for certiorari.
What are you going to say? The case isn't important enough? And I think
that the public ultimately realized that we had to take the case. ... I
was very, very proud of the way the Court's reputation survived that,
even though there are a lot of people who are probably still mad about
it. *You believe in an enduring constitution rather than an evolving
constitution. What does that mean to you?*
In its most important aspects, the Constitution tells the current
society that it cannot do [whatever] it wants to do. It is a decision
that the society has made that in order to take certain actions, you
need the extraordinary effort that it takes to amend the Constitution.
Now if you give to those many provisions of the Constitution that are
necessarily broad---such as due process of law, cruel and unusual
punishments, equal protection of the laws---if you give them an evolving
meaning so that they have whatever meaning the current society thinks
they ought to have, they are no limitation on the current society at
all. If the cruel and unusual punishments clause simply means that
today's society should not do anything that it considers cruel and
unusual, it means nothing except, "To thine own self be true." *In 1868,
when the 39th Congress was debating and ultimately proposing the 14th
Amendment, I don't think anybody would have thought that equal
protection applied to sex discrimination, or certainly not to sexual
orientation. So does that mean that we've gone off in error by applying
the 14th Amendment to both?*
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the
current society has come to different views, that's fine. You do not
need the Constitution to reflect the wishes of the current society.
Certainly the Constitution does not require discrimination on the basis
of sex. The only issue is whether it prohibits it. It doesn't. Nobody
ever thought that that's what it meant. Nobody ever voted for that. If
the current society wants to outlaw discrimination by sex, hey we have
things called legislatures, and they enact things called laws. You don't
need a constitution to keep things up-to-date. All you need is a
legislature and a ballot box. You don't like the death penalty anymore,
that's fine. You want a right to abortion? There's nothing in the
Constitution about that. But that doesn't mean you cannot prohibit it.
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. *What
do you do when the original meaning of a constitutional provision is
either in doubt or is unknown?*
I do not pretend that originalism is perfect. There are some questions
you have no easy answer to, and you have to take your best shot. ... We
don't have the answer to everything, but by God we have an answer to a
lot of stuff ... especially the most controversial: whether the death
penalty is unconstitutional, whether there's a constitutional right to
abortion, to suicide, and I could go on. All the most controversial
stuff. ... I don't even have to read the briefs, for Pete's sake.
*Should we ever pay attention to lawyers' work product when it comes to
constitutional decisions in foreign countries?*
[Laughs.] Well, it depends. If you're an originalist, of course not.
What can France's modern attitude toward the French constitution have to
say about what the framers of the American Constitution meant? [But] if
you're an evolutionist, the world is your oyster. *You've sometimes
expressed thoughts about the culture in which we live. For example, in
/Lee v. Weisman/ you wrote that we indeed live in a vulgar age. What do
you think accounts for our present civic vulgarity?*
Gee, I don't know. I occasionally watch movies or television shows in
which the f-word is used constantly, not by the criminal class but by
supposedly elegant, well-educated, well-to-do people. The society I move
in doesn't behave that way. Who imagines this? Maybe here in California.
I don't know, you guys really talk this way? *You more or less grew up
in New York. Being a child of Sicilian immigrants, how do you think New
York City pizza rates?*
I think it is infinitely better than Washington pizza, and infinitely
better than Chicago pizza. You know these deep-dish pizzas---it's not
pizza. It's very good, but ... call it tomato pie or something. ... I'm
a traditionalist, what can I tell you? /Legally Speaking is a series of
in-depth interviews with prominent lawyers, judges, and academics,
co-produced by/ California Lawyer/and UC Hastings College of the Law./

Amanda Terkel
Amanda Terkel |
HuffPost Reporting

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