October 17, 2003
Is Scalia Hurting the Conservative Cause?
Associate Supreme Court Justice Antonin Scalia is once again in the news, but this time it is not for an overly emotive dissenting opinion. This time at bat it is for his self removal from a case whose outcome is sure to be controversial no matter which way the court swings. The much maligned and celebrated case from California in which the Ninth Circuit Court of Appeals ruled that the words “one nation under God” was un-Constitutional rankled Scalia to such an extent that he spoke out against it, making his views unswervingly clear.
Speaking at a function on Jan. 12 Scalia told an audience that the 9th Circuit’s decision in the case was an example of a:
”new philosophy" among judges "that says, '[The Constitution] doesn't mean what Thomas Jefferson thought it meant, what the Framers thought it meant. It means what we think it ought to mean.' "
I hasten to point out that Thomas Jefferson was not the chief architect of the Constitution, that accolade belongs to John Adams.
By publicly lashing out at the 9th Circuit’s decision even before the case was accepted by the Supreme Court, Scalia biased himself, almost assuring his eventual self-exile from the case. The Associate Judges judicial philosophy is well know in legal circles, but his “traditionalist” interpretation of the Constitution is not shared by enough justices on the High Court to give his opinions serious sway.
I do not hold his view of the Constitution as unswerving and not open to “reading between the lines” so to speak. The Founding Fathers, in their wisdom allowed for the amending of the Constitution recognizing that societies are not static vehicles immune to change and upheaval, both social and political. How then can the document that governs them be immutable and unyielding in its body?
Does this view make Scalia increasingly ineffective as an advocate of the Conservative cause on the Court? Some think so, among them fellow Associate Justice Ruth Bader Ginsburg, who thinks Scalia, who has become increasing belligerent in his dissents from the bench, should tone down his rhetoric in order to better get his point across. I agree, his often emotional dissents, while speaking volumes of his passion for the law, do little to advance its cause, or further the conservative agenda.
In the instant case, his removal from the bench could result in an even split of the bench, in which case the judgment of the 9th Circuit stands and the offending line goes away; an outcome I hasten to add would be contrary to how Scalia would have ruled. But in his rush to “bash” the 9th Circuit he did his own cause an injustice. Perhaps in the future the Justice should confine his remarks to the pages of an opinion.
“I hasten to point out that Thomas Jefferson was not the chief architect of the Constitution…”
Why do you hasten to add this fact? Scalia’s reference is justified by Jefferson’s various contributions to how the Establishment Clause should be interpreted — a reference that should be clear given the topic at hand.
“How then can the document that governs them be immutable and unyielding in its body?”
Simple. The words as written have inherent meaning and should be interpreted as such. One such set of words is Article 5, which allows for future generations to adapt the document as necessary. That is, future generations can add or remove their own “immutable” words at such time as they think necessary. The presence of the option to amend does not invalidate the principle that the words (without amendment) have meaning that should be carefully interpreted.
All agree that the Constitution can be changed by the method outlined in Article 5, “even” Scalia perfectly accepts the Constitutional evolution that results from the amendment process. It is a cornerstone of his philosophy, as ironically outlined in his public speeches regarding the Pledge and the proper mechanisms for making the current version unconstitutional.
Where many disagree is with the degree to which variations in language usage, exigent circumstances, or just political opinion should allow judges (or legislators or even citizens) to unilaterally reinterpret the Constitution without having to engage in cumbersome and lengthy democratic persuasion to effect the process outlined in Article 5. It is solely this latter form of a “living document” that Scalia believes he is arguing against.
“… Ruth Bader Ginsburg, who thinks Scalia … should tone down his rhetoric in order to better get his point across.”
Interesting. I would be interested in the citation for this claim. Given the friendship between Scalia and Ginsburg, this strikes me as a somewhat unexpected assertion.
“Is Scalia Hurting the Conservative Cause?”
Insofar as he is persuading future generations of lawyers that the liberal judicial philosophy dominant in law schools around the country is flawed (or at least that there is a reasonable alternative), he has done the Conservative Cause (whatever that might be) a great service. Politically, it is a different matter and a more complicated question.
“Perhaps in the future the Justice should confine his remarks to the pages of an opinion.”
On this, we do agree. To err is human.
Posted by: Victor at October 17, 2003 04:08 PMIf Scalia’s—and by extension—your interpretations of the Constitution were held up as gospel the Civil Rights movement which elevated Black Americans from third class citizens to those of the first order, would not have come to pass. For as written, the Bill of Rights, whose Amendments in part were interpreted by the Warren Court of the 50’s & 60’s to apply to the states be virtue of the 14th Amendment, were never intended to apply to the many states, but now do.
Using Scalia’s strict constructionist rule, the Bill of Rights written to apply only to the Congress and federal authorities would remain so. Can you envision the United States today if such an interpretation were in force? How then Black Americans, women, or other minorities would similarly situated, fair in an America whose laws are dictated by a Constitution written for, of, and by white men? Would Jim Crow laws still segregate Black American from White?
Would the greater purpose of forming a more perfect union be served by such a governing document? I think not. Would the blessing of liberty be served truly by such a document? Again, I think not. The true difference between the “living” document theory and that of “strict constructionist” is this: the former speaks for all the people, the later just for a few…
Victor, there appears to be an inherent contradiction in the following sentence:
“Simple. The words as written have inherent meaning and should be interpreted as such.”
If the meaning is inherent (and as implied by statements above, self-evident), why is interpretation involved at all? If however, interpretation is necessary, then, it follows, that the meaning is not self-evident, nor inherent.
I would suggest, that the Constitution has survived as a living document precisely because it broadly proscribed the goal of our government (to remain limited with regard to individual liberty) and more narrowly prescribed the structure of our government, leaving the American people with a tool capable of being applied to a host of situations including those unforeseen at the time of its writing.
Posted by: David R. Remer at October 19, 2003 11:03 AMThe Constitution is purposefully vague. If you’ve seen actual laws, they are replete with definitions, with codicils, with all sorts of complex gimcrackery all meant to seal up loopholes and define the living hell out of any vagueness in the language. The legal profession doesn’t tend to operate in such broad prohibitions, in such simple statements of rights and powers. Were it meant to be interpreted narrowly and strictly, it would have been written with such strictness.
And that’s not a bad thing. When law and society are reduced to blind rule following and conformity, the ability of the system to absorb the unexpected and the unknown is greatly reduced. Because the constitution is so open to interpretation, it’s allowed our country to reassess it’s positions on many issues without forcing one party or another to overthrow the government by force. It is our blessing that we have the freedom to make our own political destiny, beyond what the Founding Fathers were capable of imagining.
I would in general agree that Scali messed up on this one.
But I wonder….
What if Scalia knows that the court will split 4-4 on this issue, leaving the 9th circuits ruling intact, right in the middle of a divisive presidential campaign
Suddenly, the issue of nominating judges becomes important to a large number of Americans (unlike now when only a few political junkies on either side really care) through the prism of removing “under God” from the Pledge of Allegiance.
Many Americans are horrified at the decision, and Bush and Republican Senate candidates blame Democrats who have resorted to the filibuster to block various nominees. This leads to an Republican landslide, moving the Senate near a filibuster proof supermajority…
Well, this is probably crazy, but Scalis is a pretty smart guy….
Andymac
Posted by: AndyMac at October 27, 2003 10:23 AM
