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Burma Sanctions Policy
"For I stole that, of which I had enough, and much better."
St. Augustine

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National Foreign Trade Council
Burma Sanctions Policy

Justice Scalia Concurrence
June 19, 2000
Seal Of The Supreme Court

It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction." I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "the sponsors of the federal Act" shared this expectation.

... Using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse — calling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). THE CONFESSIONS, Book 2

In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case.

Text Excerpt:

St. Augustine
St. Augustine
Theft is punished by Thy law, O Lord, and the law written in the hearts of men, which iniquity itself effaces not. For what thief will abide a thief? Not even a rich thief, one stealing through want. Yet I lusted to thieve, and did it, compelled by no hunger, nor poverty, but through a cloyedness of well-doing, and a pamperedness of iniquity. For I stole that, of which I had enough, and much better. Nor cared I to enjoy what I stole, but joyed in the theft and sin itself. A pear tree there was near our vineyard, laden with fruit, tempting neither for colour nor taste. To shake and rob this, some lewd young fellows of us went, late one night (having according to our pestilent custom prolonged our sports in the streets till then), and took huge loads, not for our eating, but to fling to the very hogs, having only tasted them.