Patterico's Pontifications

11/3/2005

Turning the Floor Over to Antonin Scalia

Filed under: Constitutional Law,Judiciary — Patterico @ 7:01 am



In Erwin Chemerinsky’s online chat, discussed in this post below, he mentioned the Supreme Court’s role as a protector of the rights of political minorities. He said judges like Alito and Scalia are insensitive to this role. I thought I’d give Justice Scalia the chance to respond.

First, the question to which Erwin was responding, and his answer:

Washington, D.C.: The history of the United States is a history where minorities have had to fight for rights and liberties. This would suggest that the Court is most important as a defender or not of individual liberty. The press makes it sound like all that matters, however, is whether a nominee is intellectually brilliant and a “nice guy” as witnessed by ex-law clerks and friends. Would I be wrong is concluding that the so-called “moderate” senators from both sides of the isle should line up against Alito if they care a whit about the Constitution as a shield and source of liberty for people? Isn’t the conservative agenda of judges like Alito in reality to lock down and shrink individual rights, making them subject to the arbitrary decisions of state legislatures?

Erwin Chemerinsky: I think that the Court’s most important role is in protecting minorities who are not protected by the majoritarian political process. This includes racial minorities, political minorities, religious minorities, and other groups that cannot rely on the political process to protect their rights. To me, what is so troubling about Justices like Scalia and Thomas is their insensitivity to this key role of the courts. Having read literally dozens of opinions by Alito in the last few days, I see this same insensitivity in his opinions.

That crazy old right-wing nutcase Antonin Scalia had a few things to say about this in his book A Matter of Interpretation, and I’d like to turn the floor over to him. Justice Scalia explains that a Living Constitution actually means the abdication of the Bill of Rights to . . . the whims of the majority:

The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.

Does that sound like a guy who is insensitive to the role of the courts in protecting minorities?

12 Responses to “Turning the Floor Over to Antonin Scalia”

  1. Two-hundred years ago, our morality was substantially different from what it is now. Slavery used to be acceptable – even encouraged by our Good Book. Our values change. With that in mind, I would rather be subjected to the “whims of the majority” in the present as opposed to the Puritanism of the past. (Especially if I were in a minority.)

    Also, is that an admission by Scalia in your quote that the constitution can’t do “everything that needs doing?” Interesting…

    Tillman (1cf529)

  2. With that in mind, I would rather be subjected to the “whims of the majority” in the present as opposed to the Puritanism of the past. (Especially if I were in a minority.)

    Also, is that an admission by Scalia in your quote that the constitution can’t do “everything that needs doing?” Interesting

    You make that choice for you if you want. The most persecuted minority in this country is the “individual”. The entire concept of the Constitution, as the Framers saw it, was protecting the people from the Government and the minority from the tyranny of the majority. It has served us well.

    The Constitution can do “everything that needs doing”. The mechanism is there. The problem is that you want the Judicial Branch to do “everything that needs doing”. The Legislative branch needs to do the job that it was designed to do, that is, enact laws to address the “evolving society”, amend the Constitution when necessary and leave the Judiciary to determine the Constitutionality of those laws.

    rls (0516f0)

  3. Gosh Tillman, perhaps that is what these ‘Amendment’ things are designed to address?

    In fact, wait, I think some were actually applied to that very issue. Let’s see… 13, 14, 15, yep. And let’s check the court cases… wait. The court cases seem to indicate the Robes thought slavery was _legal_. Hmm.

    You provided a counter-example to your own argument.

    Al (00c56b)

  4. rls, the bottom line, as I read your comment, is that “rights” are to be protected primarily by our processes of republican government — hence the Constitutional requirement that each state have a government of this form. That I agree with. But it’s not a popular notion after more than a half century of expansion of federal judicial power, particularly in Blue States. Try telling Joe Average Democrat that there are provisions in the Constitution whose meaning and importance are not entirely dependent on the judiciary’s power of review, and he’ll probably look at you like you’re from Mars. Tillman, with his latest comment regarding the whims of the majority, seems to be an exception.

    TNugent (58efde)

  5. Thank you for the response RLS.

    I agree that the major mechanisms of the constitution are laudable. But when our values conflict with the Constitution, the Constitution needs to be either amended or interpreted humanely. Also Al, Amendments are extremely difficult to add, so they’re not always an option. I don’t want to live by some draconian rule just because of the way a right-wing judge “interprets” the Constitution to fit his “whims.” This high-minded talk praising objectivity is cheap. (All preachers would argue that they’re being impartial, but look at how many different religions there are. The same goes for “originalism.”)

    You know, considering that torture is apparently “Constitutional,” I’m beginning to see that all this talk about constitutionality is merely academic anyway.

    Tillman (1cf529)

  6. Tillman, The point of having a written Constitution is to allow shlubs like me a decent shot of understanding the broad strokes of legality versus illegality.

    I, a non-lawyer who isn’t even vaguely associated with the legal field, can read ‘hmm, cruel and unusual punishment is a no-no’. Then I can make up my own mind as to whether I’m being cruel and unusual. It doesn’t have to spell out ‘Thou shalt not torture’. So I’d agree than ‘torturers’ should be persecuted.

    The converse of originalism is to have 9 people in robes arbitrary decide anything they please without any reason whatsoever. There is no way for a man on the street to divine what the current 9 supreme court justices _think_ in _advance_.

    Yet that is the ‘non-originalist’ position: it is a living constitution, and needs constant reevaluation to keep up with modern trends.

    My personal view of ‘originalism’, is that the Constitution should mean what it was intended to mean when written. Because at least that is _static_.

    A key facet of American law is that ignorance of the law is not a defense. And yet you are proposing that “the law” come from the mental meanderings of nine unfettered minds. Who don’t appear to object to using South African law when it suits them. I wonder what South African law says about torture. – Hey, looks like we could pick that as precedent! (No, this is _NOT_ what we want, but that is what veering off into international precedent allows)

    I’d like the Supreme Court to at least _attempt_ to stick to the text as written. Even when it provides a galling or appalling result. Yes, there will still be slack in the meanings of words, and the drift of the meanings over time.

    You don’t change the method of interpreting a blueprint for the foundation of a tower after you’ve built the 30th story without a ‘change order’ and a hellacious amount of discussion.

    I don’t know any preachers, and at least the Constitution was written in the same language its adherents purport to speak.

    Al (00c56b)

  7. Scalia is eloquent but wrong there. Of course the courts won’t rewrite the Constitution the way the majority wants it. They’ll rewrite it the way a self-selected elite minority of law professors wants it, the appointment and confirmation process be damned.

    See, inter alia, Souter.

    See Dubya (6198de)

  8. “I don’t want to live by some draconian rule just because of the way a right-wing judge ‘interprets’ the Constitution to fit his ‘whims.'”

    And I don’t want to live under a constitutional regime run by leftists expounding upon “our values” as opposed to the Constitution. See, e.g., the “evolving standards of decency” that made executions that were constitutional a year before unconstitutional the next.

    Angry Clam (fa7fff)

  9. Al, here is what I was referring to on the constitutionality of torture:

    An Aug. 1, 2002, memo from the Justice Department’s Office of Legal Counsel, addressed to Gonzales, said that torturing suspected al Qaeda members abroad “may be justified” and that international laws against torture “may be unconstitutional if applied to interrogation” conducted against suspected terrorists.
    [from http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html }

    Gonzales then, argues that we can torture away – just not on our soil and label the people “enemy combatants.” (Note that “enemy combatant” wasn’t defined to my knowledge or it was vaguely defined.)

    You make some great points Al, and I admit that I can be too polemical at times.

    I agree that adhering to the constitution is desirable. The thing is, if torture (abroad or anywhere else by our citizens or officials) is AOK with the Constitution, then the way it is interpreted now already has some serious flaws.

    Clam. Glad you’re back! You mention a perfect example of the court over-reaching and legislating morality since (for one thing) capital punishment has been around a long time in this country. (I may be liberal, but I’m not that liberal – even though I am mostly against capital punishment.) So the legislature, rather then the Royal Robes, should make that call.

    “Cruel and unusual” is open to a wide interpretation. This is an example where liberal vs. conservative comes in.

    Tillman (1cf529)

  10. Chemerinsky: “I think that the Court’s most important role is in protecting minorities who are not protected by the majoritarian political process.”

    Scalia: “The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection.”

    Chemerinsky can’t abide Scalia because he says things like: “my only authority as a judge to prevent the state from doing what may be bad things is the authority that the majority has given to the courts,” and “to presume to judge for yourself what is good or bad and impose it upon the majority simply because it is bad, I cannot accept that.”

    Chemerinsky’s presumption amounts to a kind of religious fundamentalism. He is certain about what it is good, and he is eager to see it enacted by the courts regardless of the law and the constitution.

    MDP (479d1b)

  11. I know- I wanted to move it beyond really contentious social issues like abortion/gay rights and into things where there’s a lot more variety.

    It’s pretty easy to find “Kill them all and let God sort them out” types among otherwise very liberal New Yorkers and Bostonians, for example. Likewise, there’s a sizeable contingent of the Christian Right that disapproves of capital punishment, particularly the more conservative Catholic elements. Cross-cutting like that is good for making a point.

    I hope you don’t miss my other point too, that what, to you may appear to be “our shared values” in the modern era may easily appear to others as “the whims of a judge” when they get enforced, and, obviously, vice versa.

    I think that Justice Scalia had it right when he asked how nine people could lay greater claim to understanding modern morality than the rest of the country. (Remember, Justice Scalia’s jurisprudence is not solely originalist, but also majoritarian)

    Angry Clam (fa7fff)

  12. [W]hat to you may appear to be “our shared values” in the modern era may easily appear to others as “the whims of a judge” when they get enforced, and, obviously, vice versa.

    I won’t argue with that at all. America is a nation of subcultures.

    Tillman (1cf529)


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