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by Peter Moskos

February 17, 2016

Dukakis is one smart Greek

It's too bad this man wasn't president. Oh, the economic and foreign policy horrors that could have been avoided. But I don't say that just because he's Greek. (Though that helps.) And I don't say that just because he was kind enough to write the introduction to my Greek Americans book. (Though that was very nice of him.)

Here's what Dukakis has to say about current political issues. In Slate.

I like his take down of Scalia's so-called "originalism," which masked little more than a hard-core conservative ideology:
What would I be doing? I’d be pointing out that if you are a constitutionalist, or an originalist, whatever those terms mean—because they really mean nothing. You know, Nino [Scalia] was a classmate of mine at law school. He was no more an originalist than the man on the moon.

What was originalist about Bush v. Gore? What was originalist about the Second Amendment decision? What was originalist about Citizens United for God’s sake, Isaac? We have been regulating campaign contributions since the late 19th century. Where in the Constitution does it say that money is speech? Originalism? Are you kidding me? But in any event, if you believe that, then the president has a solemn responsibility to make a nomination and the Senate has a solemn responsibility to consider it seriously, right?
A bright guy -- yeah. But he was to the right of Marie Antoinette for Christ’s sake. There was no consistency in his so-called philosophy. Money is corporate speech. This is all preposterous.
His take on foreign policy is also excellent and worth reading.


Thorn said...

"We have been regulating campaign contributions since the late 19th century."

Well since the Constitution wasn't written in the late 19th century that hardly seems like an indictment of Scalia's originalism. (I find that particular majority decision to be scarier in its equation of corporations and people, rather than money and speech but that's neither here nor there).

Scalia's decision in Heller was about as originalist as you can get, in that it was based so heavily upon the original meaning of the writers. Since Dukakis doesn't articulate his argument on this point I'm left wondering about his definition of 'originalism" given his examples (other than "opinions I disagree with").

I'd say a better example would be Brown vs. Board of Ed, in which an originalist reading would probably have to find itself upholding segregation- a point which Scalia seems to have tacitly admitted shows the limits of his legal theory.

Bush v. Gore was an all-around mess, though.

Peter Moskos said...

Assuming Dukakis's politics are like mine, because they are, I think his point with regards to gun control and Heller is that the court had *never* recognized an *individual's* right to bear arms. We can debate "well regulated militia," but quite simply nobody asserted that right was individual until 20th-century revisionism. And that was the construction that Scalia subscribed to. Because it fit his ideology.

Adam said...

"Surely [the Second Amendment] protects a right that can be enforced by individuals" is the second sentence of Justice Stevens' dissent in Heller, joined by the other three liberal justices. So I don't think it's correct to say that the Amendment doesn't protect an individual right -- all nine justices agreed that it does. The question (as Stevens goes on to explain) is whether the Amendment protects an individual's right to possess a gun for non-militia purposes. Both the majority and the dissent in Heller are very much originalist, as Thorn says. The better critique of Scalia is that the dissent actually offered a more accurate originalist interpretation, thus beating Scalia at his own game.

Corporate personhood was recognized long before Citizens United. And Citizen United (damn it damn it damn it) is not about whether money = speech. If you restrict someone's ability to spend money in order to effectuate speech, then you are restricting speech. For those who don't like the decision, here are some legally accurate protest chants against Citizens United.

I agree with Thorn that it is hard for an originalist to say that Brown v. Board was correctly decided, and I agree that Bush v. Gore was an embarrassment.

Jay said...

I thought that Scalia emphasized the words themselves even over "legislative intent." So the question is whether that preamble to the Second Amendment means anything. The question I would ask of the guns galore crowd is this: if that preamble about a well-regulated militia were not in the amendment, and if someone proposed adding it, would you object?

aNanyMouse said...

Well, Jay, a fair rhetorical question, but anti-gun folks may be taken aback by the answer:

“Everything would hinge on the clarity of the meaning of the phrase ‘a well-regulated militia’. If it clearly is understood to mean close to what it meant in the Framers’ day, then it would be fine. In their day, it clearly meant 'all able-bodied, sane adult men under age 45'. (Nowadays its meaning would have to include females.) If the phrase is said to mean what it later ‘evolved’ to mean (referring to the mere fraction of the adult population which compose the 'modern' militias), then, hell no! What’s wrong with that?”

bacchys said...

It's not true that no one had ever read the Second Amendment as protecting an individual right before Heller. Even in Dred Scott the right was recognized as an individual one. Ditto Cruikshank. The last Supreme Court decision on the Second Amendment was U.S. v. Miller, and it reads more comprehensibly in the context of an individual right than otherwise. Had Miller no right to possess firearms that would have ended the analysis right there, but instead the Court focused on the type of weapon at issue. This was a case where only the government presented arguments: Miller had disappeared and his attorney didn't think it necessary to argue the case.

It's telling, I think, that no one who opposes the individual rights interpretation of the Amendment has any argument about what a "collective right" or "state's right" interpretation would mean. The only effort I've come across in decades of reading on the Second Amendment is by Don Kates and Glenn Reynolds.

Citizens United had *nothing* to do with campaign contributions. It struck down a law which made it a criminal offense to engage in political speech about a candidate within 30 days of a partisan primary and 60 days of a general election.

Bush v. Gore is a fair point: determining the eligibility of Electors is squarely in Congress's bailiwick under the Constitution and Federal law. The Court should have left it up to Congress to decide which slate of Electors to accept, or how to decide the electoral outcome in general.

Better than Citizens United or Heller for undercutting Scalia's originalism would be Gonzales v. Raich, which affirmed the extent of Congress's commerce powers even over homegrown marijuana.

Brown v. Board isn't an example of activism, unless you view overturning a clearly wrong precedent as being activist. An originalist view of the Fourteenth Amendment supports the result in Brown, not Plessy.

Though I don't think finding exceptions to Scalia's record as a textualist (he never accepted the originalist label for himself) is really much of a knock.