Scalia's Constitution is dead.

November 15, 2001 6:15 AM

Scalia's Constitution is dead. So, do rulings from the Warren Court deserve deference? Are colonial practices our standard for cruel and unusual punishment? Does the right to bear arms stop at muskets, or does it include nuclear arms?
posted by kcmoryan (36 comments total)

I like Scalia, and I think that from a purely legal standpoint that many of his statutory and constitutional interpretations may be correct. That said, I think it's a damn good thing that he is on the fringe of the conservative wing of the Supreme Court, rather than its center. Just because his analysis may technically be right doesn't mean that's the way it ought to be.
posted by Bezuhin at 6:25 AM on November 15, 2001

Some wise and witty lawyer said not very long ago that we hate lawyers and we hate politicans but that we are fond of judges. He also noted that a judge was a lawyer who got very political.
posted by Postroad at 6:36 AM on November 15, 2001

Scalia believes that the "living Constitution" permits too much leeway on the part of individual justices and their biases. But interpretation is still integral to even a strict scriptural reading; in fact, even more so, because one must then make a judgment about a contemporary legal question by viewing it through the lens of a 200-year-old document. Which means there are now two steps of interpretation -- the first to discern what the relevant passage meant at its inception and the second to decide what that means to the status quo. Because really, Scalia is full of it if he says he disregards legal questions like privacy simply because they are not addressed in the Constitution. Just look at the 2000 election ...
posted by risenc at 6:41 AM on November 15, 2001

Here's the quote the original post is referring to (for clarity's sake!):

“The Court never had the power to say what the Constitution ought to mean,” Scalia said. “I do not believe in the ‘Living Constitution’ garbage. My Constitution is a dead Constitution. It means what it meant when it was adopted.

Of course, this is self-contradictory. He's offering an interpretation right there. How can we decide if his is the right one? And who should decide that, if not the Supreme Court? Sounds like he's just appointed himself Sole Constitutional Interpreter of the United States of America....
posted by mattpfeff at 6:41 AM on November 15, 2001

His usual schtick. Took him about five minutes to throw the speech together, prolly.
posted by raysmj at 7:06 AM on November 15, 2001

“The only Constitutional right to privacy is in the Fourth Amendment, which prohibits illegal searches and seizures,” Scalia said.

Gail Atwater, who sued her town for false arrest after she got thrown in the slammer for driving without a seat belt, says the experience has changed her from a liberal to a conservative. ''I want to limit the government's power as much as possible,'' she has told The New York Times. How ironic, then, that Atwater was handed a defeat late last month by the conservative bloc on the US Supreme Court: Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, joined by the usually liberal David Souter. By a 5-4 vote, the court ruled that the Fourth Amendment prohibition on unreasonable searches and seizures does not forbid warrantless arrests for petty offenses that are not punishable by jail and cause no public disturbance. Atwater's humiliating ordeal--she was hauled away in handcuffs in front of her two small children and taken to the police station, where she was ordered to take off her shoes and jewelry and empty her pockets, forced to pose for a mug shot, and kept in a jail cell for an hour--was dismissed as merely ''inconvenient.'' The majority opinion acknowledged that the police officer exercised ''extremely poor judgment'' but stated that it wasn't such a big deal as to require constitutional protections, particularly since there was no evidence of an epidemic of trivial arrests.
posted by Carol Anne at 7:18 AM on November 15, 2001

I had a discussion about Scalia in the weblog the other month. I had said bad things about him due to his obnoxious dissent in Romer, and a reader had objected.

For me Scalia's problem, or perhaps his meta-problem, is that he thinks (or at least claims) that once you say "we have to follow what the Constitution actually says, not what we might wish it said", that then you're done, and there's no interpretation left. But of course there's still lots of interpretation left, as risenc points out.

In Bowers, for instance, you can read the constitution (as the majority did) as actually saying that citizens shouldn't be discriminated against where there's no rational reason to, or you can read it (as Scalia did) as actually saying that citizens can be discriminated against for any reason that would have been accepted as rational when the relevant part of the Constitution was written.

It's seems clear to me that Scalia's take is the wrong one here, but that may be just because I'm not a Conservative. What I think *is* obvious is that Scalia's take is not, as he and some of his fans sometimes seem to want to say it is, the right one in some transcendant objective sense
posted by davidchess at 7:23 AM on November 15, 2001

"Gail Atwater, who sued her town for false arrest after
she got thrown in the slammer for driving without a seat belt, says the experience has changed her from a liberal to a conservative."

Seems to me she's buying into the conservative rhetoric. I can't fault her too much--I did for many years too. But while conservatives pay lip service to this principle, their actions tell a far different story.
posted by DevilsAdvocate at 7:29 AM on November 15, 2001

As others here have pointed out, any reading of the constitution involves some interpretation. I'd just like to add a concrete example where Scalia has done it also.

If you read the First Amendment very strictly, the internet would not receive First Amendment protection. After all, the internet is neither press nor speech, according to the traditional meanings of the words. Yet, in Reno v. ACLU, Scalia voted along with 8 other justices that the internet should receive First Amendment protection. (And good for him! But it does show that he interprets the constitution for modern situations just as any other justice does.)
posted by DevilsAdvocate at 7:32 AM on November 15, 2001

Gail Atwater's story illustrates that one can be conservative yet still seek judicial activism. Judicial activism, while traditionally a liberal tool, is ideologically neutral. It just so happens that most conservatives reject judicial activism as a legitimate tool, leading to the so-called "rachet effect" where liberal activist rulings get "locked in" by conservative judge's refusal to overturn prior rulings.
posted by mikewas at 7:33 AM on November 15, 2001

Scalia would make a great Islamic lawyer. When I say that, I'm half sarcastic, and half serious.
posted by gimonca at 7:53 AM on November 15, 2001

scalia is, reportedly, quite an asshole. at a school event to which he was invited, he insulted a student who was accidentally still on the stage as he was beginning to talk. on top of his fundamentalist philosophies regarding the constitution, i can say that i think it'll be a sad day when he does become chief justice.
posted by moz at 8:11 AM on November 15, 2001

The Supreme Court's authority to rule on Constitutional issues is itself dependent on an interpretation of the Constitution. In Marbury v. Madison (1803), the Marshall court "became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since." I wonder how Scalia reconciles this with his belief in a "dead" constitution?
posted by eptitude at 8:14 AM on November 15, 2001

raysmj, moz: irrelevant. Scalia's possible status as an asshole and a lazy speechwriter has nothing to do with the validity of his argument.

Everyone here seems pleased with the point that any reading of the Constitution requires interpretation. I can't imagine anyone denies this, Scalia included.

But it's sophistry to thereby charge Scalia with hypocrisy. There is a vast difference between, on the one hand, exercising judgement in applying rules felt to be explicity present in the Constitution, and, on the other, giving authority to rules the Framers would have included had they had the chance.

Yes, judgement is required in parsing the Constitution. But that is not the kind of "interpretation" at issue.
posted by argybarg at 8:52 AM on November 15, 2001

argy:

i made no comment on the validity of his argument. i said that it i think it'll be a sad day when he becomes a chief justice, and i feel that i am entitled to my own opinion of him.
posted by moz at 9:08 AM on November 15, 2001

The Court never had the power to say what the Constitution ought to mean,” Scalia said.

So then, why do they call him Judge, (let alone Justice)??
posted by BentPenguin at 9:18 AM on November 15, 2001

argybag: Didn't say it wasn't relevant, only that this particular Scalia has been gone over a zillion times. His beliefs are probably in high school textbooks, and most definitely in many intro-level collegiate PoliSci texts. You speak of strict constructionist philosophy at any time, the name Scalia has to come up. Absolutely nothing new here, no new Scalia angle or insight. And he could've written the thing in his sleep.
posted by raysmj at 9:18 AM on November 15, 2001

Yes, judgement is required in parsing the Constitution. But that is not the kind of "interpretation" at issue.

I think it is, though. Scalia and his ilk can comfort themselves with the above distinction, but one person's "judgement" is another person's "interpretation".

For one example, the 2nd Amendment guarantees the right of every citizen to own a flintlock musket. Expanding the 2nd Amendment to include semi-automatic assault rifles is blatant interpretation. I don't think anyone will argue that the Framers had such weapons in mind when they were writing the Constitution, yet this broad interpretation is now a broadly accepted part of our legal landscape.
posted by Ty Webb at 9:20 AM on November 15, 2001

There is a vast difference between, on the one hand, exercising judgement in applying rules felt to be explicity present in the Constitution, and, on the other, giving authority to rules the Framers would have included had they had the chance.

Sure. But it still begs the question whether that's what the Framers intended. Did they ever say, this is it, this is the Constitution, don't you ever dare change or broaden or adapt it to the (inevitable) changes our (then young) country is sure to encounter? (I don't know -- I'm relying on my high school education here, so it's an honest question, though I do have my opinion on how I think they should have answered it. I do know there were provisions for the ammendments, and concede that, clearly, the Supreme Court doesn't following them in broadening the Constitution to apply it to modern life.)

It may in fact be sophistry, but it remains a relevant question. If the Framers in fact never explicitly stated that the words of the Constitution should only be interpreted completely literally, then someone -- i.e., the Supreme Court -- still has to decide if that's what they intended. So, yes, it must in the end be up to the Supreme Court to decide what the Framers meant, and not just what they said.
posted by mattpfeff at 9:26 AM on November 15, 2001

The famous escape clause is Article IX of the Bill of Rights:

The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.

It's a bit slippery, though, to say that Article IX states that other rights are implicitly Constitutionally guaranteed. Many of the acts of the Living Constitution proponents have been install rights into the Constitution; i.e., that abortion is implicitly protected under the Constitution. (Yes, I'm pro-choice; no, I don't think it's protected under the Constitution. It should be -- amendment, anyone? -- but it isn't.)

This is no great problem until that ghostwriting supports more ghostwriting; i.e., a right interpreted into the Constitution becomes the basis for another ruling. Things can get far out of hand.

Just saying that all judges interpret the Constitution, and that thus no strict reading is possible, invokes a miasma in which any justice can codify his notion of rights. Are you willing to accede to that when the justice is on the other side of the ideological fence?
posted by argybarg at 9:43 AM on November 15, 2001

“The Court never had the power to say what the Constitution ought to mean,” Scalia said. “I do not believe in the ‘Living Constitution’ garbage. My Constitution is a dead Constitution. It means what it meant when it was adopted.” That means Scalia's around 250 years old, at least. He looks quite well.
posted by mmarcos at 10:20 AM on November 15, 2001

The real problem here is the tension between straight democracy and (I don't know what to call it...justice? protection of minorities? republicanism?)

On the one hand, most of our laws can be voted on by our directly elected representatives. But then there are a few rights that the founding fathers thought were so important they should be locked in to the constitution and protected by judges who base their decisions on what they think is right rather than what is popular.

As long as the judges base their decisions on those rights that the people originally agreed should be in the constitution, then all is well. But if they start making decisions just based on what they think is right, without regard to whether that's what was originally agreed on in the constitution, then the country becomes even less of a democracy. The law of the land becomes what a few judges think it should be rather than what the majority (or their representatives) voted on at one time or another.
posted by straight at 10:59 AM on November 15, 2001

For me Scalia's problem, or perhaps his meta-problem, is that he thinks (or at least claims) that once you say "we have to follow what the Constitution actually says, not what we might wish it said", that then you're done, and there's no interpretation left.

As the aforementioned objecting chess reader, lemme say that I almost entirely agree with what David said. But I think that Scalia overstating his case is beneficial. It seems to have been successful in shifting the terms of the debate more toward what latitude of interpretation judges should exercise.

The whole point of a Constitutional Republic was to limit the scope of power of the government in order to preserve individual liberty. The whole point of loose interpretaition of the Constitution was to subvert these limitations, to allow the Supreme Court free reign to impose their infinite wisdom upon whatever pressing social problems they chose to meddle with. See for reference the idiotic Equal Protection argument in Bush v. Gore.

Questioning the authority of judges to do this is a Good Thing. Scalia is not perfect, but he is the foremost defender of limited judicial scope.
posted by marknau at 11:31 AM on November 15, 2001

Here is a very good - and short! - article by Peter Wenz which, though discussing a particular question(abortion rights), provides excellent background and a concrete application. Ronald Dworkin is probably the greatest liberal legal philosopher of our time and his debate with Bork, Scalia and others is still raging.
posted by MiguelCardoso at 1:04 PM on November 15, 2001

Hmm. That link Mr. Cardoso offers does more than provide background, it makes a good argument that we can in fact find a standard by which the Supreme Court can interpret the Constitution -- and exercise its judgment -- without giving it free reign to remold the law as it sees fit. A good read (but not one easily summarized).

Ultimately, of course, it remains the Supreme Court that is responsible for interpreting its own job description. I mean, this philosophy of law is very interesting, but not exactly easily enforced -- there's no mechanism for deciding what the best mechanism for deciding what the law is, except the one we have.
posted by mattpfeff at 1:43 PM on November 15, 2001

Miguel- Is that Ronald Dworkin with the wife Andrea Dworkin? You know, she's the one who once defined pornography in such a way that (a) any and all photographs of nude females was pornography, and (b) no photograph without nude females was pornography.
posted by yesster at 2:01 PM on November 15, 2001

I believe that SCOTUS suffers from Scalia's presence. There are a myriad of small nuances in his speech, actions, and written opinions that produce the impression (to me) that he is guided by a philosophy centered around self-aggrandizement rather than one anchored by principles.

I also believe he sewed up the Chief Justice spot during the 2000 elections. I have no evidence of chicanery (more's the pity), but that whole thing just didn't smell right. (I'm not coming down on the side of either Gore or Bush; I'm deploring Scalia's obscene involvement in the fray.)
posted by joaquim at 3:23 PM on November 15, 2001

I was hoping someone would link to a Supreme Court decision on the main page. Has anyone ever linked to a Court decision?
posted by ParisParamus at 4:06 PM on November 15, 2001

There is often a fine line between judicial activity and judicial activism. The constitution, as originally framed doesn't seem to have given the Supreme Court the power of constitutional review that it possesses now until Chief Justice Marshall defined that power in Marbury vs. Madison. The line between activity and activism has moved back and forth many times over the history of the United States. For one example, see FDR's Fireside Chat on Reorganization of the Judiciary, March 9, 1937

There is a legitimate fear that the Court, with it's ability to declare a legislative or executive act unconstitutional can be acting as a super legislature. Wenz (Miguel's link above) is right that it's a lot more comfortable for all concerned when a judge can point towards a specific enumerated section of the Bill of Rights as justification for a decision that has been made. And it does happen that laws get passed that are unconstitutional. The executive branch, and the legislature don't have the benefit of hindsight that the Court does.

There are limitations on the Court. One is the requirement that what is before them is an actual case or controversy. Another is that there are multiple members of the Court with differing views, amongst whom a majority needs to be reached. The selection and confirmation process has been pointed at with criticism by many over the past decade or two, but in many ways it is a reasoned, and reasonable process. How much sway does the Congress have over the jurisdiction and composition of the Court? It is a power they have, but have rarely wielded as a matter of public spectacle (The confirmation hearings of Bork and Thomas being exceptions). The legislature also has the power to rewrite legislation that has been found unconstitutional by the Court, and address any infirmities that the Justices may have found.

I do agree with Scalia that maintaining the separation of powers is vital to our government. Allowing Justices to make decisions based upon personal whims that uproot legislation as unconstitutional blurs that separation. When that happens, it's time for the legislature, or the executive (as FDR proposed) to strike back. Having one or two judges on the bench who feel as Scalia does is probably good for our country. The "original intent" doctrine he follows provides a balance on the Bench.

I do disagree with Scalia on the subject of amendments to the constitution being the only way that the document evolves. As Roosevelt states in his fireside chat, an amendment is not only extremely difficult to make come to pass, but also: "For an amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is."
posted by bragadocchio at 4:29 PM on November 15, 2001

Yes, judgement is required in parsing the Constitution. But that is not the kind of "interpretation" at issue.

Okay, okay, but here's what gets me about the Conservative Justices' idea of reading the Constitution through an 18th century lens: historical interpretation.

Now I've read a number of these opinions which purport to rely on the Founder's America for support, but what they all boil down to is one interpretation of "what happened." Of course, you can say that on January 1st of whatever year, I was born because here's a document that says so and my parents told me so and there's even photographic evidence of said event. Right. However, I think that it's problematic as hell when you try to pin down some modern problem with no clear historical antecedent or analogy (which is another problem in itself) and then use it as a basis (however thin) for a ruling that happens to coincide with the majority (or plurality or whatever's) ideological position. That soap just doesn't sell.

I mean, shit, go down to the local university library and research any historical topic you care to mention. One of the first things you'll find is that there will be many journal articles with diametrically opposed positions based on the same historical "facts." Phd's need to make a living, but there's always room for argument and (heaven forbid) interpretation when trying to pin down what really happened. I've never understood how Justices can support their decisions with this kind of argument and maintain a straight face.
posted by estopped at 12:37 AM on November 16, 2001

Doesn't the "dead" Constitution interpret slavery as an OK thing? I seem to recall a major war over this single interpretive issue. What say you Scalia?
posted by nofundy at 5:14 AM on November 16, 2001

Doesn't the "dead" Constitution interpret slavery as an OK thing? I seem to recall a major war over this single interpretive issue. What say you Scalia?

The 14th amendment is part of the Constitution, too. Scalia isn't claiming that the Constitution can never change over the time; quite the contrary. But if you're going to change the constitution, he wants you to use the legitimate amendment process outlined in the Constitution.

So when you're dealing with 14th amendment law, you try and get at the original intent of the framers of the 14th amendment.
posted by gd779 at 5:36 AM on November 16, 2001

In other words, if you want decisions about our most controversial social issues to reflect the will of the people, putting the decision in the hands of a handful of old, white men would be an odd way of going about it.
posted by gd779 at 5:38 AM on November 16, 2001

if you want decisions about our most controversial social issues to reflect the will of the people...

Of course, the whole point behind having a Constitution is that the decisions made by the Court should reflect the LAW, not popular opinion.

There's a very good reason for that - go back to your 6th grade civics class.
posted by mikewas at 8:17 AM on November 19, 2001

Of course, the whole point behind having a Constitution is that the decisions made by the Court should reflect the LAW, not popular opinion.

Not that anybody's still reading but... that's kind of Scalia's argument. Judges are supposed to uphold the law, not make policy. That's why we have an amendment process.
posted by gd779 at 3:12 PM on December 7, 2001

I'm reading, gd, and I agree.
posted by MiguelCardoso at 11:31 PM on December 7, 2001