The 25th Anniversary of the Liberation of Kuwait

           On this day in 1991, United States President George H.W. Bush announced the completion of the Liberation of Kuwait from invading Iraqi forces and the end to military operations, although some major battles with isolated Iraqi unites occurred for a few days afterward.   At this twenty-fifth anniversary of the Liberation of Kuwait from its invasion and annexation by the Baathist Iraqi regime of Saddam Hussein, it is right to express gratitude for the leaders of the defense of the principles of sovereignty and independence and especially for the soldiers who won the war and to reflect on their accomplishment. 

            After Iraq, which had invaded and attempted to seize part of Iran in 1980, invaded Kuwait in 1990, it annexed its smaller neighbor and refused to withdraw.  Iraq’s actions were among the most flagrant example aggression since the end of the Second World War, after which the international community had vowed never again to tolerate such actions. 

Concerned about the threat to international peace posed by such flagrant aggression and to the independence and sovereignty of all States in the world, the U.S. assembled an international coalition of Arab, Muslim, Western and other Sates, backed by the United Nations Security Council, to liberate Kuwait in the following year.  In a war that lasted only several weeks, the coalition ended the Iraqi aggression and restored Kuwait’s independence and sovereignty.  Kuwait’s former leaders were returned to power. 

            Iraq was deterred from ever committing such aggression again.  Hussein’s continued threats to its neighbors, violations of the 1991 cease-fire, including its failure to make reparations to Kuwait, and of United Nations Resolutions, in addition to his state sponsorship of terrorism, led to the overthrow of his regime in 2003 in the U.S.-led Liberation of Iraq. 

            Indeed, in the quarter-century since Kuwait was liberated, no foreign State has totally conquered another, or even made such an attempt as flagrant as that made by Hussein in 1990.  There has been less conflict between States around the world since and only rare attempts of any kind of lesser aggression.       

            The Russian Federation invaded Georgia in 2008 in support of two pro-Russian breakaway regions in which it has since established puppet states.  Russian forces in one of them have gradually pushed the border further into Georgian territory.  The Russian Federation invaded the Crimean peninsula in Ukraine in 2014, despite having signed a treaty with Ukraine recognizing its sovereignty and territorial integrity, and then annexed Crimea under a legally dubious plebiscite shortly after.  Russian forces have invaded eastern Ukraine and Russia has supported Russian-speaking separatist rebels there.  As in Crimea, the Russians invaded covertly.  Because of international opposition to aggression, Russia had to avoid an overt invasion and an annexation of all of Ukraine, as it had also stopped short of invading all of Georgia.  Although not as flagrant as Iraq’s imperialist invasion and complete annexation of Kuwait, Russia’s acts of aggression have nonetheless been the rare exceptions to the global consensus against any aggression since Kuwait was liberated in 1991.  Russian aggression in Ukraine are being punished through international economic sanctions, but, just as sanctions failed to force Iraq to withdraw from Kuwait, they have not succeeded in liberating Russian-invaded territory.  

            The Liberation of Kuwait thwarted and punished aggression, instead of allowing it to be rewarded.  The coalition of States that freed Kuwait from its Baathist Iraqi invaders defended not only Kuwait, but the principles of sovereignty and independence, for if aggression had been allowed to stand, the sovereignty and independence of every State would have been threatened.  The Russian violations of the international consensus against aggression are reminders of the necessity of continued vigilance to defend the principles of sovereignty and independence and to keep the international peace.  

Bolivians Reject a Referendum for another Term for their Leftist President

           In another blow to the Left in South America, Bolivians voted down a constitutional referendum that would have allowed their term-limited leftist President from standing for re-election to a fourth term.

           Constitutional changes to allow chief executives to serve for life have been a common strategy in the recent rise of authoritarianism within democratic states, especially in Latin America and Africa.

            Led by Venezuela’s socialist dictatorship, leftist parties had come to power in several Latin American States, but that trend is rapidly reversing.  As I posted late last year, the liberal ruling party was defeated in Argentina by a conservative in the Argentine presidential elections last year and the conservative opposition defeated the socialist ruling party in the Venezuelan congressional elections.  See my posts, Trends in Recent Elections in Major Foreign States, http://williamcinfici.blogspot.com/2015/11/trends-in-recent-elections-in-major.html,  The Democratic Opposition Wins a Supermajority in the Venezuelan Congressional Elections, http://williamcinfici.blogspot.com/2015/12/the-democratic-opposition-wins.html, from November and December, respectively.  

           Because Bolivians voted to maintain presidential term-limits to prevent further consolidation of power by the ruling leftist party, they will also have a more effective opportunity to choose a different course in the next presidential elections.      

Defenders of the Family in Italy Defeat the Legalization of Homosexual Adoptions

           The main center-left Italian party that forms the majority of the Italian Government has abandoned its proposal to allow homosexuals to adopt their same-sex partner’s children because of strong protests from pro-family Italians.  The proposal was part of a proposed civil unions bill. 

            The adoption provision was opposed by the influential Catholic Church, pro-family activists and by the conservative political parties, including the center-right party that is the junior member of the coalition government.  There was even a significant contingent of Catholic Members of Parliament from the ruling center-left party who opposed the measure. 

Defenders of the family were concerned that same-sex civil unions would be the equivalent of marriage, an institution which is in the Italian constitution, as they recognized marriage as the foundation of society.  A larger concern was that because homosexual adoptions would undermine the right of children to have a mother and a father, it could lead to the legalization of surrogate motherhood, an anti-family practice most Italians find appalling.   

The victory by pro-family forces in Italy should provide encouragement to those who defend the family elsewhere in Western Europe and even beyond.

Additional Conservative Thoughts about Antonin Scalia's Legal Philosophy and Interpretation

           I posted a memorial to United States Supreme Court Justice Antonin Scalia, a post explaining the Bush v. Gore case and another in which I honored him by correcting some misconceptions and debunking some myths about the Constitution.  The purpose of this post is to include a few additional thoughts about the great originalist jurist’s legal philosophy and theory of interpretation.

Liberals have no qualms about inventing new rights and interpreting laws in ways their authors could never have imagined and no one interpreting the laws had imagined even for centuries until now, which is contrary to the judicial role of only interpreting the law as it was intended by its authors and not effectively making law, in violation of the constitutional principles of the Separation of Powers (the division of government between Legislative, Executive and Judicial Branches).  Before Scalia, legal interpretation was not focused on the text of the law.  He vigorously opposed such judicial legislation and became the first modern champion of the legal theory of textualism, or “originalism” as a way to avoid this problem.  Employing such methods of interpretation as consulting historical lexicons and dictionaries, Scalia was highly influential in leading the restoration of originalism.  Not only conservatives followed his lead, but liberals were forced by his brilliant legal reasoning to make at least a minimal effort to examine the text of the law in light of how the words were originally intended to be understood and to avoid other practices of interpretation, such as trying to interpret the original intent of the law by examining its legislative history while ignoring the plain meaning of the law as it was democratically approved.  Scalia understood that a judge’s role was not to correct an apparently-flawed law by supposing the legislature intended it to mean something other than what the words in its text reasonably mean. 

An important note about originalism is that it is a moderate method of legal interpretation, as it requires neither overly-strict construction, nor permits too liberal interpretation, but reasonable interpretation, as the meaning of the text is to be interpreted as a reasonable person would have understood its meaning at the time the law was enacted.  Yet originalism is based on conservative principle because it conserves the original intent by upholding the original meaning as reasonably understood. 

In addition to the example of the application of originalism I cited in my post memorializing Scalia about the meaning of “Militia” in the First Amendment to the Constitution as including not only the National Guard, but the whole body of armed citizenry, I note another particularly good example of his originalism: his explanation of the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  Scalia noted that because the text plainly reads “cruel and unusual,” not “cruel or unusual,” something had to be both cruel and unusual to be constitutionally prohibited, not only one or the other.  Of course, he noted “cruel” meant what was regarded as such at the time the Amendment was ratified, not, as liberals interpret it, as what may be regarded as cruel now.

Scalia exposed some inconsistencies by liberals in their practice of legal interpretation.  He noted their adherence to stare decisis (let it be decided), which is a legal policy of deferring to precedent, even if a case had been judged erroneously, if overturning it would be overly burdensome because the case had become such settled law as to be relied upon, when his liberal colleagues agreed with the outcome of an erroneously-decided case, but their lack of reluctance in overturning similarly-settled cases with which they disagreed.  Another inconsistency for which Scalia called out his colleagues is their recent trend of citing foreign law as authoritative in interpreting the U.S. Constitution, with the implication that the U.S. should follow the lead of the majority of foreign States, but yet upholding the Exclusionary Rule (a judicial policy that bars criminal evidence illegally obtained), even though no foreign State has such a rule. 

An important aspect of Scalia’s judicial theory is the principle that the law must be based upon morals, as morality is necessary for society and thus for self-government.  He thus opposed the overturning of reasonable laws simply because they were based upon morals.  It is important to note the distinction between objective morals and religion beliefs.  In this era, the debate about upholding objective morals versus opposing them seems like a conservative-liberal conflict, but Scalia was standing for the general principle, which had been previously accepted widely.  

Although there were many cases in which Scalia was in the majority, even the unanimous majority, and wrote the opinions of the Supreme Court, whether it was united or divided, he was much more often in the minority.  Even a dissenting opinion, however, is instructive to lawyers and legal scholars and can become the basis for future majority opinions or influence legislators.  Because of his intellect, scholarship and writing skills, his direct influence could continue for decades through his many vigorous dissents.  As one of the greatest American jurists, and especially as the great originalist, Scalia’s general influence will extend indefinitely.  

Correcting Historical Misconceptions and Debunking Myths about the United States Constitution

In addition to the misconceptions and myths about the Constitution as amended that I addressed in my last post, there are a number of common misconceptions and myths about provisions of that document that have since been amended or about American history at the time of its amendment and the meaning of those amendments.  Because a better understanding of American constitutional history is important, I am including them in this post:

The Three Fifths Rule (Article I, Section II) did not count “blacks” as three fifths of a person, but only slaves as three fifths.  Free blacks were counted as equally as any other free person, while white slaves were counted as three fifths of a person.  The purpose of this anti-slavery provision was to limit the apportionment to slave states of Representatives in the House, which is based upon population.  By not counting slaves equally to free persons, the number of Representatives from slave states in the lower chamber of Congress was thereby reduced and the power of the slave States to enact legislation favorable to slavery was diminished. 

The Constitution did not deny freedoms to slaves, as slaves were described in it as “Persons” (See Article I, Section II, Article I, Section 9 and Article IV, Section 1).  The Constitution guarantees the liberty of all people, not only citizens of the several States.  Notwithstanding the Constitution’s tolerance of state or even federal violations of liberty that legally permitted persons to be “held to service,” slaves were otherwise not denied any other freedoms, rights, privileges and immunities and were not treated unequally by that document.  

The Constitution did not originally deny the privilege to vote to blacks or women.  In fact, blacks and women in some States had already been exercising the franchise well before the passage of the Fifteenth and Nineteenth Amendments, respectively.  Therefore, the Fifteenth Amendment did not “give blacks” the right to vote and the Nineteenth Amendment did not “give women” the right to vote.  These amendments guaranteed that the privilege to vote “shall not be denied” because of race, color or previous condition of servitude, or because of sex, respectively.  This more general negative wording thus also guarantees that whites and males, for example, cannot be denied the franchise.

Correcting Misconceptions and Debunking Myths about the United States Constitution

           In honor of the late United States Supreme Court Justice Antonin Scalia, the great originalist, I thought I would briefly correct some common misconceptions and debunk several common myths about the Constitution, the document he revered as the charter for American self-government that is based upon representative federal republican ideals, according to the original meaning of the text at the time of the ratification of the Constitution or of its Amendments:

            The Constitution establishes the “United States,” a federal union of the several States.  Although this union enjoys sovereignty because it shares certain government powers that are given to it by the States, it is not strictly speaking a “government.”  Indeed, there is no reference to “government” in the Constitution in regard to the United States, except in Article I, Section 8, in regard to the “Seat of Government” (the capital).  That the United States is a union of states is the basis of the principle of divided government, or federalism, in which powers are divided between or shared by the federal and state governments. 

            The United States may not regulate intra-state commerce.  Article I, Section 8 authorizes it only to regulate inter-state commerce.

            The United States has the exclusive authority to enact uniform laws in regard to naturalizations under Article I, Section 8, but immigration and the general entrance of foreign visitors into the several States is not an exclusive federal authority, as the Constitution does not mention it.  As the authority to regulate the entrance of foreigners into the several States is not prohibited to the States, and this power is also federal in nature, it is thus shared by both the United States and the several States.

            Congress has the power under Article I, Section 8 to “declare War,” as well as some other limited war-making powers, but the power to make war generally is inherit in the office of the President as the “Commander in Chief” of the armed forces under Article II, Section 2.  A declaration is a statement.  A declaration of war is a statement that a state of war exists between one state and another.  It is not an authorization of war.  A President thus may make war without a declaration of war and Congress may declare war without the President making war.

            The Supremacy Clause of Article VI establishes the Constitution, as well as all federal laws and treaties, as the “supreme Law of the Land,” but laws and treaties are only binding if they do not violate the Constitution, as interpreted by the judicial Branch, which is established by Article III.

            There is no constitutional “right to speak,” “right to assemble,” etc., in the First Amendment or elsewhere in the text, which instead refers to the “freedom” of speech, etc.  A freedom is the exercise of a particular liberty to act or to refrain from acting, whereas a right is a legal claim.   

            There is no “separation of church and state” in the Constitution.  The First Amendment prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof . . .”   Note: the several States are not prohibited from establishing religion.  Congress may not choose a particular religion as the official religion of the United States and compel anyone to adhere to it or support it or deny anyone who does not believe in it any liberty, but none of the three Branches of Government of the federal Union are prohibited from impartially tolerating, acknowledging or even promoting religion generally, let alone thanking God or at least acknowledging the Creator as the source of liberty.

            The Fourth Amendment does not require warrants for searches.  It requires only that persons, their homes, papers and goods be secure from unreasonable searches.  The Amendment also requires warrants be based on “probable cause.”  Note there is no express constitutional “right to privacy.”

The Thirteenth Amendment does not prohibit all slavery.  Slavery is permitted by it “as a punishment for crime.”  

The Fourteenth Amendment did not hold the several States bound to the “Bill of Rights” (the first ten Amendments) as a whole (i.e. the Bill of Rights are not specifically “incorporated”).  The Amendment prohibits the abridgement of the “privileges or immunities” of the United States, requires due process for the accused and the equal protection of the laws, but does not expressly require the several States to abide by all of the provisions of the Bill of Rights.  The “Privileges and Immunities” are referenced in Article IV, Section 2.  They mean the freedoms and rights, privileges and immunities guaranteed by the States’ Constitutions at the time of the passage of the federal Constitution, which generally included at least similar protections as in the federal Bill of Rights.

Restore Washington’s Birthday and Eliminate “Presidents’ Day”

           As I do every year on this holiday, I renew this year my call for a restoration of the celebration of Washington’s Birthday as a federal and state holiday across the American Union. 

            The federal holiday is legally called “Washington’s Birthday,” but is commonly referred to as “Presidents’ Day” and most States have officially dropped George Washington’s name in favor of “Presidents’ Day” or a similar name, although a few include Abraham Lincoln’s name along with the Father of Our Country.  With the celebration statutorily set when it is, it can never fall on February 22, the birthday of Washington. 

            I have noted in previous posts the day is intended to honor Washington, not only as the first President of the United States, but as the General who led the Americans to victory in the Revolutionary War and as the indispensable Founding Father, not as a day to honor all the Presidents or the presidency.  As Washington’s greatness as an American is unparalleled, the day celebrating his birth should not be diluted with the inclusion of other Presidents. 

            With the passage of time, although there have been other great Americans and Presidents, Washington stands out ever more as a most successful leader who was brave, humble and honorable.  Just as America needed Washington over two centuries ago, it needs him today. 

           Renaming the holiday intended to honor him for his birthday would help Americans to consider Washington’s accomplishments, to emulate his example and to choose honorable leaders.  

The United States Supreme Court Did Not Determine the Outcome of the 2000 Presidential Election

           The passing of United States Supreme Court Justice Antonin Scalia has led some commentators to revive the myth that the Court determined the outcome of the 2000 presidential election by effectively selecting George W. Bush President.  Scalia authored the majority opinion in the Bush v. Gore case that ended additional recounts for Electors in Florida and thus settled the process of the election, but there was no circumstance in which Bush would not have been elected President, regardless of the Court’s ruling.

After the Republican ticket of Bush-Cheney’s slate of presidential and vice presidential Electors in Florida won the count and the statewide recount by a few hundred votes out of millions cast, the campaign of Democratic ticket Gore-Lieberman demanded partial recounts in heavily-Democratic areas.  The Supreme Court ruled 7-2 in favor of plaintiff Bush that the partial second recounts defendant Albert Gore had requested violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution because each county applied different standards of interpreting voter intent and thus votes were being counted in one place within the State and not in another.  

Indeed, the Democratic strategy had been to continue to recount the votes until, by some statistical chance, their ticket’s Electors would have won the most votes, which is why the Gore-Lieberman campaign only wanted to recount the votes in favorable areas.  Then the Democrats would have insisted on stopping any further recounts.  They knew that a statewide recount was less likely ever to produce a winning result for the Gore-Lieberman slate of Electors.  Their only possible chance of success was with partial recounts, but the Supreme Court struck those down.

            The question then arose as to whether to allow a second statewide recount of all of the votes under a single standard of the interpretation of voter intent.  The Supreme Court barred such a recount because, as Scalia explained in his opinion, the evidence (perforated paper ballots into which voters would punch holes to indicate preferences) would have been spoiled by further handling.  He was also concerned that the delay in determining the election results was undermining confidence in the electoral process and shortening the transition period for the incoming president.  Had there been another recount, partial or statewide, the apparent losing party would have been allowed to challenge those results and demand yet another recount.  And that cycle could have continued with another recount, each time with the evidence being handled further while the only partially-perforated holes were increasingly likely to appear fully-perforated, and thus votes would be manufactured by those handling the ballots, until the time would have run out for Florida’s Electors to be certified in order to participate in the vote of the Electoral College. 

The outcome of the presidential election would not have changed had the recounts been allowed to continue.  It is important to note there were no significant allegations of election fraud or other irregularities to the benefit of the Bush-Cheney slate of Electors and no recounts of any kind that have been attempted by private citizens after the fact have demonstrated any other result but that the Republican ticket’s Electors received the most votes.  To the contrary, there were a number of instances of fraud or irregularities that likely benefited the Democratic ticket, such as the scores of mostly Democratic voters who voted in both Florida and other States.  Regardless of the results of any recounts, the Democratic argument that the Bush-Cheney ticket’s Electors were not validly elected is contradictory.  It relies upon the theory that because the outcome of the election was too close to be certain that the Republican Electors had won, therefore there is certainty that the Republicans had lost and Bush was thus not validly elected President because the Bush-Cheney slate of Electors were not validly elected.  It is one thing to question the certainty of the popular election results for Florida’s Electors, but another to insist at the same time with certainty that the Bush-Cheney Electors had lost, let alone to advance the conspiracy theory that Bush had lost the election and the Supreme Court “selected” the President in some kind of a coup d’etat.  The only ones in the disputed Presidential Election of 2000 who violated the Constitution was the Gore-Lieberman campaign.

With the uncertainty fostered by the Democrats about the choice of Florida’s voters, the House of Representatives could not have accepted the votes from Florida’s Electors if it had any doubt about the validity of their election.  Indeed, it was precisely that uncertainty that caused the Florida Legislature, to the contradictory objection of the Democrats, to consider appointing the Bush-Cheney slate of Electors, even with the outcome of the election for Electors undetermined, lest the State be disenfranchised in the Electoral College and Floridians been excluded from expressing their preference, as none of their votes would have counted by the House, in contrast to the Democratic insistence that “every vote” be counted.  The Article II, Section 2 of the Constitution requires that State Legislatures appoint Electors, but leaves it to their discretion as to how to choose the Electors.  Popular elections for Electors are not required in the first place.  Just as a legislature could veto the popular choice and appoint a different slate of Electors than the ones nominated by the party whose ticket receives the most votes, it surely has the right to appoint them when the popular will is indeterminate.  In fact, their power to appoint Electors is a remedy for an election for which the results were too close to be certain.  As Republicans were in the majority in both houses of the Florida Legislature at the time, the Legislators likely would have appointed the Republican slate of Electors.  These Electors voted in the Electoral College for Bush and Cheney.

The House of Representatives, whose responsibility it is to review the results of the presidential election by the Electoral College and even the eligibility of Electors to cast ballots, would have had no valid reason to deny the votes of Florida’s Electors and Bush’s election by the Electoral College would have been ratified by the House.  Even if some Democrats had succeeded in obtaining a majority vote in the Republican-majority chamber to not count of Florida’s ballots, despite their slogan of “counting every vote,” Bush still would have been elected President, as the House would have had to vote because, without the votes of Florida’s Electors, no candidate would have received a majority of electoral votes.  The House would have conducted the presidential election by voting by state delegation.  As a most of the States’ House delegations were Republican majority, the House would likely have voted to elect Bush President.  Note: the only outcome of the 2000 election that could possibly have been different from what occurred had the recounts for Electors continued was the election by the Senate of the Vice President, as its Democratic majority may have voted for Joseph Lieberman.  

The Supreme Court did not in Bush v. Gore effectively elect or “select” the President by ending the recounts for Electors.  At most, their ruling ended the uncertainty about the election by allowing Florida finally to certify the Bush-Cheney ticket’s slate of Electors, as there was no serious doubt they had received the most popular votes and whom Florida’s Legislature could simply have appointed anyway, regardless of whether or how the Court had ruled.  In 2000, as in every presidential election, except in 1800 and 1824, when the House elected the President, the Electoral College elected the President.  No President is ever popularly elected, but elected by the Electors who are not constitutionally bound to vote according to the apparent popular preference in their House district or State.  Therefore, George W. Bush was as validly elected as every other President. 

The United States Senate Should Only Confirm a Pro-Constitution Supreme Court Justice

           With the death of United States Supreme Court Associate Justice Antonin Scalia, a debate has begun on whether or not to confirm anyone nominated to fill the vacancy on the Court by President Barack Obama or let the next President make the nomination.  The Senate should consider his nomination, but make it clear that it would only confirm someone who reveres the Constitution and its principles of federalism and the Separation of Powers and understands the constitutional role of a judge is to interpret the law and not make the law.

            Some conservative Republican Senators and other conservative elected officials and political commentators have suggested that with less than one year left in his term, the Republican-majority Senate ought not to confirm the liberal Democratic President’s nomination that would likely alter the balance of power on the highest federal court in favor of the liberals, as many of the most significant recent decisions have been decided by a 5-4 margin. Some of them even dismiss the Obama as a “lame duck,” even though he was re-elected; a lame duck is one who is defeated for re-election.  The concern of these Senators and others is valid, as Obama has appointed judges, including to the Supreme Court, who do not revere the Constitution or respect its principles of federalism and the Separation of Powers, but instead make law by interpreting the Constitution and statues as they wish.  Furthermore, Obama has demonstrated extraordinary contempt for the Constitution, as several of his actions or laws he has signed the Court has found to have violated the Constitution, as recently again as last week.  However, the Senate should proceed with caution in establishing any precedent, as the situation could be the reverse some day and there are legal, constitutional and political concerns to consider, as well as an opportunity to force Obama to make a good nomination. 

            A vacancy on the Supreme Court necessarily creates an extra burden for the remaining Justices, as they are each assigned an appeals court circuit to oversee and there is also a division of labor in writing opinions.  Even with a full bench, the Court only hears less than one percent of the cases appealed to it.  Indeed, it is time to consider increasing the membership of the Court to 11 or 13 by the next presidency.  What is more significant is that any decisions in which the Court is split 4-4, in which case the appellate court rulings would stand, would not be as regarded as authoritative, as they would leave the law unsettled.  The American people would not have confidence that such rulings would not be different once the balance is tipped by the next appointee, one way or another.  Furthermore, there would continue to be a lack of clarity in the law in those instances when there are contradictory rulings from the appellate courts.  There are several significant controversial cases to be decided by the Court by June.  By the time a new President is sworn into office and he nominates someone to fill the vacancy and the confirmation process is completed, the Court would have been without its full membership for over a year.  Justice delayed is justice denied. 

            The President may make a recess appointment within the next several days before the Congress returns to session and would likely not recess again long enough the rest of his term of office to allow him to make any recess appointment.  Although a recess appointment would ease the caseload of the Court, its rulings nevertheless would not settle the law, as the appointment would only be temporary (until the end of Congress’ session, which is nearly to the end of the President’s term of office).  It would preclude the Obama from making a permanent nomination, unless the recess appointee resigned or another vacancy on the Court occurs. 

            The optimum solution is for the majority of the Senate to declare that it would only confirm someone  nominated by the President who reveres the Constitution and respects its principles of federalism and the Separation of Powers and who would refrain from making law instead of only interpreting it, as the Senate should insist regardless of which president is in office.  A good judge, like Scalia was, ought not to substitute what he thinks the law should mean for what the plain meaning of the law is, as understood reasonably at the time the law was enacted.  By fulfilling their constitutional role, the majority of the Senate would not appear to be partisan or obstructionist, but Obama would if he insisted on appointing someone unqualified.  

           In this way, either a pro-Constitution Justice would be confirmed by the Senate to the Supreme Court without there being a vacancy too long on the Court, or it would be President Obama’s fault for insisting otherwise.

Antonin Scalia, Rest in Peace

           Antonin Scalia, Associate Justice of the United States Supreme Court, the brilliant champion of restoring originalism in interpreting the law, died yesterday at the age of 79 in Texas.  The great jurist was a devout Catholic, conservative, patriot and defender of the Constitution and its principles of limited and divided government.

            Scalia was born in Trenton, New Jersey in 1936.  His father was an immigrant from Sicily, Italy and his mother the daughter of Italian immigrants.  The family moved to New York when Scalia was six.  The young scholar received a Bachelor’s Degree in History from Georgetown University in 1957 and graduated from Harvard Law School three years later, earning high academic honors from both schools. 

            Scalia practiced law privately in Ohio for several years and then taught as a professor of law at the University of Virginia from 1967-1971.  President Richard Nixon appointed him General Counsel of the Office of Telecommunications Policy in 1971 and Chairman of the Administrative Conference of the United States, in which capacity he served from 1972-1974.  Scalia was nominated Assistant Attorney General for the Office of Legal Counsel by Nixon in 1974 and then re-nominated by President Gerald Ford and confirmed by the Senate.  Returning to private life after 1977, he worked briefly for the American Enterprise Institute and then taught law at the University of Chicago from 1977 to 1982, where he was the first academic advisor of the Federalist Society, during which time he also edited Regulation magazine.  President Ronald Reagan nominated Scalia to the United States Court of Appeals for the District of Columbia Circuit and he was confirmed by the Senate. 

            Reagan nominated Scalia to the Supreme Court in 1986 to replace Justice William Rehnquist, whom Reagan had nominated as Chief Justice to replace retiring Chief Justice Warren Berger.  The Senate confirmed Scalia unanimously. 

Scalia thus became the first Justice of Italian descent.  His appointment and honorable service as a Justice of the Supreme Court helped to dispel prejudices against Italians, and particularly Sicilians, that were based upon associations with crime.  His intellect also served also as a contrast to the prejudice against the Southern Italians for their supposed lesser intelligence. 

Similarly, Justice Scalia’s famous brilliance disproved the liberal notion that conservatives are not intellectual.  He also became known for his wit, writing skill and for his forceful argumentation.  Scalia was the most frequent questioner at oral arguments and his written opinions were by far the most studied by legal students. 

Scalia understood the role of a judge to interpret the law and not to make law.  Scalia respected the constitutional doctrine of the Separation of Powers, which created divided government between the legislative, executive and judicial branches, with a system of checks and balances.  He understood that it is not the judge’s duty to fix a flaw in a law by re-interpreting it in a way different from how its text plainly reads.  Scalia argued that interpreting the law by trying to determine the legislative intent leads judges to substitute their own intent of what they believe the law ought to mean for what it truly does.  Therefore, he opposed the trend toward judicial activism that led to judge-made law and instead applied the principle of original meaning by interpreting the law based upon how the words in it would have reasonably been understood to have meant at the time the law was written, in contrast to how liberals change the meaning of the law by changing the meaning of words.  By restoring the principle of original meaning, Scalia was thus not only a counter-revolutionary defender against liberalism of the Constitution, but of the democratic process, as the law ought not to be changed by judicial whim, but only by the people through the official actions of the elected representatives.   When the original meaning cannot be conclusively interpreted, he believed judges should resist the temptation to interpret the law as they want it to mean and instead interpret it in light of the legal tradition found in common law cases and state laws. 

The most noteworthy example of Scalia’s originalism was his majority opinion in the Heller case in 2008, in which the Court ruled that the District of Columbia had violated the plaintiff’s Second Amendment right to keep and bear arms—the first time the Court had ruled that there was such an individual right.  The originalist jurist cited historical examples to prove that by “Militia,” the Framers meant not only the state National Guards, as liberals insisted the word had come to mean in modern times, but the entire body of private citizens.  Scalia demonstrated his commitment to his principle of opposing judicial activism by even interpreting the law to mean something that he personally opposed.  His support for the Separation of Powers was also evident in rulings against usurpations by other branches of government, such as in the case of President Barack Obama’s unconstitutional abuse of the power to make recess appointments. 

Scalia also defended the constitutional principle of federalism that limits the federal government only to certain powers, while reserving the rest to the States, a principle, like that of the Separation of Powers, that has been violated for several decades.  He understood that these principles guided constitutional interpretation.  Scalia was successful in a number of cases in limiting the increasing concentration of power by the federal government.  A significant recent example was the 2012 decision overturning as unconstitutional part of the federalization of health insurance, known as “Obamacare,” that would have forced States to expand Medicaid. 

Another recent trend among liberal colleagues on the Supreme Court in legal interpretation Scalia opposed was their citation of foreign law. 

Although Scalia was more often in the minority on the Court, there were other significant conservative victories on a range of issues in his nearly thirty years on the Supreme Court, such as in regard to religion, abortion, the death penalty, border security, election law and freedom of expression.  

The Supreme Court rulings of which Scalia participated promoted liberty and good government, but it is his restoration of originalist interpretation of law that was his greatest contribution to American jurisprudence.  The Good Judge’s opinions will continue to be studied by legal scholars.  May Antonin Scalia’s life and work continue to be a good example to others and may Americans enjoy more the blessings of liberty and good government as his legacy. 

The 105th Anniversary of Ronald Reagan’s Birth

           Today is the 105^th anniversary of the birth of Ronald Reagan in 1911.  The former actor, union activist, conservative leader, Governor of California (1967-1975) and 40^th President of the United States (1981-1989), who died in 1994, continues to inspire Americans and others around the world.  Some historical lessons from Reagan are especially timely to study.

            In the midst of another presidential election campaign, I thought it useful to recall Reagan’s optimism about America.  Although he would become angry about problems caused by government policies, he would make a succinct diagnosis of the problem and suggest a common-sense solution based upon limited government and with cheerful confidence that America’s best days remained ahead.   He considered those who agreed with him at least 80% a fellow conservative and welcomed them into the movement.  It is worth remembering especially at this time the famous “Eleventh Commandment” he most famously promoted: “Thou shall not speak ill of a fellow Republican.”

Reagan understood the necessity of compromising with one’s political opponents to achieve as much as possible in advancing conservative policies.  Using his skills as a union negotiator, as well as his ability to communicate directly with the people, he often achieved as President more than expected, yet he stood on principle, when necessary, such as by vetoing a budget to cause a partial-shutdown or vetoing or threatening to veto some other budget-busting legislation or famously refusing to give into the Soviet demands to abandon missile defense.  Spending and tax cuts and the restoration of the military were among the most significant domestic fruit of Reagan’s negotiations with Congress, despite the control of the House of Representatives by the Democrats.  These policies helped lead to the then-longest peacetime expansion in American history.  In addition to these, his policies during the height of the Cold War toward the Soviets and International Communism allowed him to negotiate with the Soviets from a position of strength that resulted in the elimination of an entire class of U.S. and Soviet missiles and would lead soon after he left office to the Fall of Communism and the breakup of the Soviet Union.  Reagan accomplished numerous other conservative goals as President, but these most significant ones that were the consequence of negotiation compromises were the most relevant to today.  

Reagan is rightly regarded as the greatest American President of at least the second half of the Twentieth Century and since, as the most politically successful Republican President and as the best leader of all time of the conservative movement.  He unified his party and movement as no one else.  While conservatives and Republicans seem ever-searching for the “next Reagan,” Republican presidential candidates and other elected GOP officials often try to claim the Reagan mantle.  It is always worthwhile to study how Reagan was able to achieve greatness in advancing conservatism and to try to emulate him.  

Foreign Digest: Venezuela, Argentina, Portugal, Spain

Venezuelan Congress

            As predicted, Venezuelan dictator Nicolas Maduro’s regime attempted to limit the power of the democratically-elected opposition to Congress.  The opposition won a two-thirds majority in December, which was enough to exercise certain checks and balances than could a majority less than that threshold.  The socialist dictatorship barred enough opposition candidates from taking office to allow the opposition to have the super-majority.  Nevertheless, as also predicted, the opposition is attempting to press on with its program of restoring liberty and addressing Venezuela’s hyperinflation, depression, corruption and violence.

Argentina Begins to Repay Its Debts

            While Venezuela edges toward default of its debts, the new center-right Government of Argentina has concluded a deal to repay tens of thousands of Italian bondholders after Argentina’s leftist government had defaulted on its debts nearly 15 years ago.  The more than one billion-dollar deal is the first of what are expected to be a series of deals to repay Argentina’s creditors who held out after the Argentine default.

Portuguese Presidential Election

            The center-right candidate was resoundingly elected in the Portuguese presidential election, winning a majority of the popular vote, far ahead of the candidate of the leftist Government and every other candidate.  The Portuguese electorate thus indicated its rebuke to the minority leftist anti-austerity Ggovernment that took power, despite the plurality vote in favor of the ruling center-right party.  The center-right party had been unable to form a coalition government.  Although the President of the Republic is not the head of government, he does exercise certain limited constitutional roles, in contrast to the usual inaccurate media descriptions of the role of presidents or similar heads of state of parliamentary republics as “ceremonial.”  It is hoped that the incoming Portuguese President can help restrain the leftist Government from harming Portugal through the threat of the presidential power to dissolve parliament when the government acts against the interests of the state.

Spanish Parliamentary Elections 

           In Spain, like in Portugal, the ruling conservative party won a plurality in the Spanish elections for Parliament, but has been unable to form a coalition government with majority support.  No other party is able to form an unprecedented coalition government in the usually-two-party state, either.  I shall post updates of any significant developments, such as the formation of a minority government or the call for fresh elections.  

Reminder: Beware Clinton Nostalgia

           Many liberals, especially of late, argue that other than former United States President Bill Clinton’s scandals while in office, which included adultery with a White House intern, perjury and obstruction of justice, as well as various other scandals of the Clinton Administration, that he was a good president.  However, my post from December of 2010, Beware Clinton Nostalgia, 

http://williamcinfici.blogspot.com/2010/12/beware-clinton-nostalgia.html, summarizes the case that proves that he was not.