In watching the new film "What the Constitution Means to Me," I learned how the Violence Against Women Act failed to protect Jessica Lenahan (Gonzales) in her suit against the U.S. (initially the Castle Rock PD). Gonzales had a court order of protection against her ex-husband. He kidnapped their three daughters. Gonzales called the Castle Rock PD more than ten times asking for help. When she learned he was 40 miles away they told her she should go to him and show them the paper. When the police finally caught up to him he had murdered the three children who were in the trunk of the car.
Lenahan sued the police department, and lower courts ruled in her favor. But when it got to the Supreme Court, Justice Scalia, an originalist, said that the restraining order only said that the police "shall" arrest the offender, so that chasing after a man who was about to murder his three children was "optional." Justice Breyer said that "shall" meant no such thing (the film played a recording of their argument during the hearing).
THAT'S ORIGINALISM, saying that enforcing a law was "optional" because it was worded "shall" instead of "must." No mention of the murdered children, the terrified, grieving mother. No mention of the fact that the murderer got thirty years but was released in two!
Because an originalist made it a question of semantics instead of JUSTICE, justice was not done.
This flawed man (God rest his soul) was one of the original professors employed by the Federalist Society to corrupt the minds of future judges who might otherwise have been interested in justice--justices like Amy Coney Barrett, whose lower court decisions have already reflected this callous and brutal philosophy. Poor Barrett, a mother of seven, would probably have been a jurist who put justice before semantics, but she had the misfortune of being "shaped" by this misguided man.
Scalia's callous action basically knocked the wind out of the violence against women act (the Constitution didn't protect women, and the Equal Rights Amendment was a few states short of ratification.)
Lenahan sued the police department, and lower courts ruled in her favor. But when it got to the Supreme Court, Justice Scalia, an originalist, said that the restraining order only said that the police "shall" arrest the offender, so that chasing after a man who was about to murder his three children was "optional." Justice Breyer said that "shall" meant no such thing (the film played a recording of their argument during the hearing).
THAT'S ORIGINALISM, saying that enforcing a law was "optional" because it was worded "shall" instead of "must." No mention of the murdered children, the terrified, grieving mother. No mention of the fact that the murderer got thirty years but was released in two!
Because an originalist made it a question of semantics instead of JUSTICE, justice was not done.
This flawed man (God rest his soul) was one of the original professors employed by the Federalist Society to corrupt the minds of future judges who might otherwise have been interested in justice--justices like Amy Coney Barrett, whose lower court decisions have already reflected this callous and brutal philosophy. Poor Barrett, a mother of seven, would probably have been a jurist who put justice before semantics, but she had the misfortune of being "shaped" by this misguided man.
Scalia's callous action basically knocked the wind out of the violence against women act (the Constitution didn't protect women, and the Equal Rights Amendment was a few states short of ratification.)
In June 2005, Justice Scalia, writing for the 7-2 majority, reversed the Tenth Circuit's decision and held that Ms. Gonzales had no personal entitlement under the Due Process Clause to police enforcement of her restraining order.2 3 Despite the Colorado legislature's repeated use of the word "shall" in the mandatory arrest law, the Court explained, "[w]e do not believe that these protections of Colorado law truly made enforcement of restraining orders mandatory."24 It was also unclear, the Court opined, whether the preprinted notice on the back of Ms. Gonzales's restraining order required the police to arrest Mr. Gonzales, seek a warrant for his arrest, or enforce the order in some other way. This uncertainty, according to the majority, was further evidence of police discretion over enforcement. https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1233&context=fac_articles
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