Justice Scalia was on C-SPAN yesterday promoting a strawman argument against the Living Constitution, a caricature version railing against jurists and others that apparently want the courts to just make up things as they go along. It was offensive in that we had a supposedly very intelligent guy, an U.S. Supreme Court justice many think should get a promotion, just being full of shit. The audience appeared to know this, if the expressions on some of their faces could be taken on (ahem) face value. No matter, I know it was what I was thinking.
The concerns of those that believe the courts are too flexible and loose with their reading of the Constitution are worthy of respect. Nonetheless, it is intellectually dishonest (especially for those respected for their intellect) to make the case in a completely shoddy way, especially when your audience (here, ultimately, America) might be misled by the supposed expertise of the speaker. You might say that the ultimate example of someone making it up as he goes along is Justice Scalia's remarks in this speech, since clearly the words of the Constitution and history behind them surely did not compel his approach.
Various examples from his remarks can be used, but a few should do the trick. The most ridiculous was his reference to his unanimous confirmation vote. This was a case of the times of recent past when being a good lawyer and such was enough, not ideological litmus tests, a clear result of the growing powers of the courts inclined to follow the living constitution approach. He failed to comment on a few relevant factors. First, the Senate's energy was largely spent in the controversial nomination to promote Rehnquist to Chief Justice. Second, President Reagan did not tend to nominate great liberal lawyers to the bench. Finally, throughout our history, ideology was a factor in judicial confirmation battles.
Not that his examples of how the courts have made up things as they went along were much better. For instance, he referenced NYT v. Sullivan, which apparently out of nowhere found allegations of libel against public officials to be a First Amendment issue. A few years after the Senate first opposed a Supreme Court nomination on ideological grounds, however, there was the whole debate over the Alien and Sedition Acts.
If Justice Scalia read Sullivan, he would have discovered a major point of debate was the question of how far the government can constitutionally go in fighting libels against public officials. Appropriately applied? You decide. Whole cloth? No.
Not that only the infamous Warren Court was the only source of Justice Scalia's spleen. He also found a 1930s opinion (respecting federal prosecutions) protecting the right of indigent offenders to have a lawyer, paid by the state if necessary, as clearly not covered by the U.S. Constitution. A reading of the opinion and of history will again inform that though the matter might be debatable, it too was not just drawn out of whole cloth.
It is in fact this strawman approach, the idea that the other side is totally outrageous, that truly rankles. Where did an opinion protecting the right of gays from blanket discrimination come from? The Equal Protection Clause? How about excessive punitive damages? Due Process and Excessive Fines Clauses?* And so forth.
[And so forth. Why stop at the 1930s? Or 1920s, as he did in the speech. His view of the Eighth Amendment was opposed by an opinion in 1910. Oh, he did use Dred Scott to point to the "first" case of using due process to target the substance of laws. Aside from being a misleading reading of the case (ultimately based on the power of Congress and the rights of blacks/slaves), the general idea was already starting to be addressed in state decisions and general legal thought. In fact, the ultimate principle harkens at least back to the 1600s. Strawman arguments, however, do tend to fall apart when looked at more closely.]
Justice Scalia also finds the whole Living Constitution movement as a violation of what federal judges are supposed to be doing, downright illegitimate. I say "federal" judges, but he often just says "judges." Thus, it is somewhat unclear if he thinks British judges act illegitimately when they follow a common law method to interpret the British Constitution. The rejoinder, though trying to prove too much again given the breadth of its written law, is that this constitution is unwritten.
Nonetheless, again, this does not quite work. As many argue (though Scalia said that there really are no standards if you are not an originalist), the vague and open-ended clauses of the Constitution set up a system of law that develops over time. It too is a "common law" system in many respects, though cabined by the limitations of the words and basic intents or understandings behind them. In fact, many so-called living constitutionalists argue they they truly are originalists. So, maybe Scalia is right on that point!
None of this is truly new, though the growth of the power of the courts leads some to try to ignore the fact. It is one thing to oppose the degree of something; it is quite different to oppose the very principle behind it. Those that find the courts too powerful or too loose with the written Constitution have something to teach us. All the same, they do not really help their cause (surely not honestly, though Scalia is not lying per se – except to himself) by using false and empty arguments to try to rein them in.
A justice who has joined quite a few decisions that limited the powers of the people to govern themselves really does not convince many more than those who want to be convinced that his true concern is self-government and limited judicial power.**
These remarks underlined why he is not fit to be Chief Justice, and why a President who finds him a model of judicial action is not to be respected too much either.
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* The Due Process Clause requires a fair procedure before property, including money, is taken away. The punitive damages cases determined that certain criteria must be in place to regulate the fairness of such procedures, including not being blamed in state courts for out of state actions. Likewise, Justice O’Connor and others argue that punitive damages (by the very name, they are at least quasi-punitive in nature) are a type of fine, which must not be "excessive."
It is one thing to say that the guidelines are too hazy for the courts to be able to regulate such issues, or even that punitive damages are not really covered by the provisions. Quite another to say that such concerns are so clearly not addressed by the Constitution that those that argue otherwise are downright specious and/or just trying to provide makeweight supports to their individual policy concerns.
** If he wants to target abortion and gay rights opinions, the other side can point to his opinions against affirmative action, campaign finance laws, federal legislation protecting the rights of handicapped state employees, various environmental regulations, and laws against flag burning. The last one in particular would have surprised many of the framers.
This does not mean Justice Scalia's rulings on such issues were wrong per se, though some were, it means that originalists also limit democratic action. I would not say their interpretations are ridiculous though, since they are not – they often are worthy of some respect, if not enough to carry the day. Of course, Bush v. Gore might be used as a ready rejoinder, though we need not use such a controversial opinion to make the point. Many others are readily available.