And amazingly, this is the proper use of the word “literally.”

This morning in Morning Docket we learned that Justice Ginsburg demurs on the question of whether or not Edward Snowden is a traitor. It’s a prudent move on Her Honor’s part. Even if Snowden never returns to face U.S. courts, it’s only a matter of time before another whistleblower exposes another government project and Justice Ginsburg wants to avoid appearing biased in any way whatsoever. After all, Judge Shira Scheindlin got thrown off a case for bias because she publicly said she wasn’t biased in favor of one side. The appearance of impropriety and all that.

Meanwhile, RBG’s best buddy on the Court has no such qualms about the appearance of impropriety. After all, Justice Scalia saw no reason to recuse himself from cases when he’s gone on vacations with the litigant.

And on the question of committing traitorous acts, Justice Scalia threw his oath to the wind and told a gathering to go ahead and become domestic threats to the Constitution….

The oath of office for a Supreme Court justice reads:

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

It doesn’t take any of the interpretive gymnastics Justice Scalia likes to bemoan to figure this means “don’t encourage people to rise up against the U.S. government.” It also has the benefit of being a remarkably simple requirement. And yet, here we are.

Speaking at the University of Tennessee College of Law on Tuesday, the longest-serving justice currently on the bench was asked by a student about the constitutionality of the income tax, the Knoxville News Sentinel reports.

Scalia responded that the government has the right to implement the tax, “but if it reaches a certain point, perhaps you should revolt.”

This can’t be stressed enough: Justice Scalia wasn’t saying that people should revolt over an unconstitutional governmental act, but against something that he just agreed is constitutional. Help us out Justice Scalia, at what point does this constitutional act slip into justifying revolt? I’m not seeing that in my strict constructionist reading of the Sixteenth Amendment:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

It seems to be missing the “if marginal tax rates reach an unholy 39.7 percent, the rights of the people to storm the barricades shall not be infringed” clause.

Having a representative of the highest judicial body in the land on a whistlestop tour telling people that revolt is the answer to constitutional provisions they don’t like isn’t just a violation of the oath of office, it undermines the judicial system as a whole. What faith is there in the rule of law if one of the nation’s top judges is telling you not to get elected and change the law, but to rise up in revolt? It’s reckless and dangerous.[1]

There are two species of alternative takes on this comment. First, Justice Scalia is just being funny and we should all lighten up. Second, that “revolt” isn’t necessarily violent and can include peaceful protests, making all this concern an overreaction. Both are entirely plausible readings of Justice Scalia’s remarks, and even if they’re true, Justice Scalia should knock it off.

No one denies that Justice Scalia is a jokester. Perhaps he was having a little sarcastic fun at the expense of these students and trying to express that the income tax is constitutional and not to waste time pretending there’s anything but an extra-constitutional solution. The phrase “reaches a certain point” would seem to belie that, but whatever.

In support of this interpretation, it’s worth noting that this is the second time this month that Justice Scalia has told someone to start a revolt. Earlier, he told a law student who asked if an originalist interpretation of the Constitution for a cosmopolitan society was appropriate given that it was drafted by an exclusive cabal or wealthy, white men: “You people wanna make a revolt? Do it!” Jeez, now that all the people on his side are loaded down with assault rifles, he’s really itching for this revolt, isn’t he? Anyway, at the time, I characterized this as a “condescending sarcastic quip,” which seemed to fit his personality perfectly. His comments on tax policy might come from the same place of trolling people with extreme political views.

Or maybe in both cases he was being sincere and talking about a peaceful “revolt” of grassroots uprising. Like the California “taxpayer revolt” in the 70s. That also seems a little suspect given that, at least in the first instance where he invoked the R-word he was talking about the fundamental rejection of the Constitution as a text. Also, who uses the word “revolt” peacefully? At the point you go all the way past “protest” to “revolt,” you’ve crossed into some weightier stuff.

The problem is whether he was playing it for yuks or not is immaterial. We just watched ranchers out West threaten to “overrun” government agents because they don’t like paying land-use fees. The principals in that confrontation declared that they just don’t respect any federal laws. The government backed off because it feared a violent confrontation.[2] These are the sorts of folks who see Justice Scalia telling the world that you can revolt at “a certain point” and think violent protest is an appropriate response to laws — constitutional laws, mind you — that they don’t agree with.

Just because Justice Scalia has every right to say stupid stuff doesn’t mean it’s a responsible move for someone occupying high office. He should apologize and — like Kent Brockman when he learned the ant people weren’t taking over — “reaffirm his allegiance to this country and its human president.” That’s what someone with a sober sense of responsibility to his office would do. Or someone with any sense of shame. So Justice Scalia won’t be doing that.

But at least all you Snowden supporters out there can take heart, because apparently Justice Scalia thinks acts of treason are justified if you personally don’t like the laws involved.

Scalia To Student: If Taxes Go Too High ‘Perhaps You Should Revolt’ [CBS D.C.]



[1] But crazy liberals need to slow their roll before calling it illegal though. It’s definitely not capital-T “Treason” as defined by the U.S. Code. More lowercase-t treason defined by “common parlance.” As in, “Look at that guy say armed revolt against the government might be a good idea.” And don’t come at me with the idea that the remarks are in the ballpark of those described in 18 U.S. Code § 2385:

“Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States…”

Saying “perhaps you should” in an academic discussion doesn’t make Justice Scalia Che Guevera.

[2] It seems as if poor, black people brandishing guns and declaring they wouldn’t follow the law wouldn’t have gotten the “oh, then never mind” response from the government that these white landowners got.


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