The latest in the "think outside the box" legal article can be found in the NYT Magazine today by Scott Turow (who sorta should know better) entitled "Scalia the Civil Libertarian?" (sounds like a superhero) This is what one powerful dissent in war on terror cases (Hamdi) will get ya, even though he also dissented (for the opposite result) in Rasul and Hamdan, while joining the lame punt job (involving a U.S. citizen, whose rights he so eloquently defended in Hamdi) in Padilla. I can toss in a less well known opinion that follows this theme as well.
The article grows out of the "no one is that knee-jerk" truism that is shown in this case by Scalia's formalism that does have some civil libertarian results (Justice Stevens had some brief remarks that were aired on C-SPAN last night in which he noted how Scalia voted to strike down bans on flag burning, over dissents by Stevens ... dissents of which Stevens was "proud."*) Turow references Scalia's originalism:
Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts. ...
In adjudicating the war on terror, Scalia has come down strongly on behalf of the administration and its prisoners in a number of cases. The extensive powers claimed by the Bush administration would seem to pose a problem for originalists, because the Bill of Rights was indubitably added to the Constitution to keep the new American executive from repeating the monarchal abuses of King George.
This is thin gruel, and misleading at that. Given the evidence, Turow has to note (though the title and lede teaser suggests otherwise) that Scalia "tends to view executive power expansively, but only when it is applied to the many areas beyond the narrow preserves created by the Bill of Rights." I'm not sure what this means. Many argue that such "narrow preserves" go beyond what Scalia holds true; in fact, are not quite so "narrow." Turow is just plain wrong -- surely not without clarification or backing -- to imply otherwise with such comments like "the Constitution's protections are generally intended for only American citizens." What? Is this why the word "person" is repeatedly used or references to power overall, not over specific individuals?
In fact, to the extent the term has clear meaning, true (truer?) originalists like Thomas hone much more to the "means exactly" test cited. Scalia does not -- he is quite willing to let precedent and policy (his reliance on clear tests and legislative discretion) win out at the end of the day. And, he quite honestly admits to the fact. Listen to his public rhetoric as well -- lots of concern about too powerful courts and so forth, ignoring that when the courts acted in the way he liked, it often was quite anti-majoritarian (in a strict sense) as well. This sort of thing might appeal to the Bushites, but it is not quite "originalism."
Lots of references to "tradition" as well, but not as many Thomas-like originalist appeals. In fact, on things like medical marijuana and anonymous pamphletting, Scalia split with Thomas. Now, Thomas has shown himself to be quite executive friendly [claimed originalists like Yoo are quite creative on the executive power front], as shown by his outlier opinion in Hamdi, but to the degree he is a renegade of sorts, the article could easily been written about him too. He out Apprendi-ed Scalia on the jury issue, one strand cited in the article. Scalia's ultimate failure to supply a majority to free Padilla underlined the softness of his one sign of independence -- Hamdi.
Stevens staid true to his principles on that point. No sale, Scott.
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* He opposes a constitutional amendment to overturn the ruling for two basic reasons -- after the ruling, there was no burst of flag burning, and the very act now sends a more "free speech" message. I'd add that both applied beforehand, but maybe he was just trying to be nice. Anyway, he looked nice and healthy, much younger than his age, which is a good sign.