First Chapter

Scalia Dissents

Regnery Publishing, Inc.

Chapter One

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Justice Antonin Scalia is a verbal craftsman. His mastery of language and respect for words carry over into his judicial philosophy. That philosophy is fairly simple and straightforward, and he has explained and championed it in his opinions, public speeches, and even a book. As with his memorable opinions, the primary focus of Scalia's philosophy is words.

Scalia is a self-proclaimed "textualist." He believes laws-and especially that supreme law known as the Constitution of the United States-say what they mean and mean what they say. In short, when interpreting the Constitution, Scalia thinks judges should focus on the text. If someone claims he or she is being denied the exercise of a right or if the government asserts it has authority to take a given action, courts must make certain there is specific textual support for each assertion.

If the proper meaning of the text is clear, judges should then determine whether it provides support for the claimed individual right or governmental authority. If so, the claim is valid; if not, it should be rejected. The analysis is complete.

If the text is ambiguous or not dispositive, however, Scalia says courts should look to see if support for the claimed right or authority exists in the legal and social traditions of the United States. If an agency of government has been exercising a certain authority since the Constitution was adopted and it has been accepted by law or custom, it should stand. Conversely, if an asserted individual liberty has been prohibited by the states throughout history, the claim for constitutional protection should fail. Scalia has used the lack of textual and historical support to oppose recognition of, among others, the "right" to abortion (chapter five) and the "right" to die (see chapter twelve).

Scalia also advocates adoption and adherence to general and clear rules when interpreting the Constitution. For instance, with regard to the Fourth Amendment's prohibition on unreasonable searches and seizures, Scalia has noted that it is not always clear what constitutes a seizure. Of course an individual has been seized if he has been physically forced into the back of a police car, but what if a suspect were being chased by police on foot? He certainly does not have freedom of movement at that point, but has he been seized for constitutional purposes? Scalia says that questions like this should be answered whenever possible with clear general rules. In a case involving these very facts, he joined an opinion that argued that police conduct does not constitute a seizure until it has had "a restraining effect." Such a rule, if adopted by the Court, would help to define what constitutes a seizure for all future related cases.

In Scalia's view, general rules are beneficial because they provide notice and certainty to the public that is expected to obey the law. They also ensure that the American people will receive equal and consistent treatment, and not be subjected to the predilections of the current justices on the Court or to shifting popular opinion.

Consistent with his textualism and preference for clear lines, Scalia argues for a strict separation of powers between the executive, legislative, and judicial branches of the federal government. In his view, each branch of government has the authority granted to it by the Constitution. No more, no less. None of the branches can give up its power or exercise authority given to another branch, even if consent is explicit and the goal is more efficient government. Scalia contends the Constitution's structural designs-separation of powers (division of power among three federal branches) and federalism (division of power between federal government and states)-are more important to safeguarding individual liberties than the Bill of Rights (chapter three).

Nevertheless, the Bill of Rights is not unimportant in Scalia's philosophy. He believes the freedoms enumerated in the Bill of Rights are nonnegotiable and deserve the highest level of protection, even when competing interests seem convincing. For example, the Confrontation Clause of the Sixth Amendment guarantees criminal defendants the right "to be confronted with the witnesses against him." The clause does not say defendants shall have that right "sometimes" or "often" and it does not cover "some" witnesses. All the time, all witnesses. Yet a majority of the Supreme Court has held that in light of modern psychology's concerns about the impact on youthful accusers and witnesses, especially those alleging sexual abuse, use of closed-circuit television does not abridge a defendant's confrontation right. Scalia opposed the Court's decision and said the Sixth Amendment should not be watered down to avoid potential harm to child witnesses. The text is clear. The right is guaranteed.

These are the types of difficult cases, Scalia believes, for which the Framers designed a Constitution and gave the justices of the Supreme Court the benefit of life tenure-to prevent society from changing the law in ways that violate the enduring values the nation enshrined in the text of the Constitution. After all, Scalia argues, a democratic nation does not need a written constitution to reflect current values. Elections do that. A written constitution is needed to protect values against prevailing wisdom.

For example, the First Amendment to the United States Constitution prohibits the suppression of free expression. The Framers wanted to create an environment in which all ideas would be heard and debated, and the best would prevail. They understood that for a self-governing people this freedom had to include the right to criticize the government.

Nearly two hundred years later, a substantial majority of the American public seemed willing to forfeit some of that freedom to curb a form of political protest that offended it: burning the American flag. The Congress, being a political body, responded by passing the Flag Protection Act of 1989. Scalia voted with four of his colleagues to strike down the law on the grounds that the act of burning the flag amounted to protected speech. The value enshrined in the First Amendment-freedom of speech, especially political speech-must trump popular opinion, however strongly held, or the First Amendment's guarantee is meaningless (see chapter nine).

Scalia contends the nation's founding charter is flexible enough-as written-to deal with most challenges presented by modernity. The same guarantee of freedom of "the press," which covered early American printing presses, applies with equal force today to the online press, even though the Framers could not have foreseen computers, much less the Internet. When ruling on the legality of a police department's use of thermal imaging to search a suspected drug dealer's house for contraband without a warrant, Scalia did not find the Constitution lacking, even though it was written before sheriffs had cars, let alone thermal imaging technology. Scalia wrote for the Court's majority that the Fourth Amendment's prohibition against unreasonable searches protected Americans against this modern law enforcement practice.

Finally, Scalia's fidelity to the Constitution does not lead him to conclude that the document cannot be changed. He simply argues it should only be amended according to the procedures set forth in the charter itself. The Constitution's amendment process was followed when the American people wanted to make structural changes to their government, as when they ratified the Seventeenth Amendment to provide for direct election of United States Senators. And, he has pointed out, it was used when Americans wished to create additional individual rights, such as when the Nineteenth Amendment was ratified to guarantee women the right to vote.

Some might believe changes such as women's suffrage were long overdue and should have been incorporated into the Constitution by a more generous interpretation of another provision, such as the Equal Protection Clause. Yet the Supreme Court in those days did not feel empowered to establish new rights without textual or, at least, historical support. As important and overdue as the women's right to vote was, its legitimacy was established by its adoption-as required by the Constitution-by a two-thirds vote of the Congress and ratification by 75 percent of the states. This legitimacy stands in stark contrast to the way rights are added to the Constitution by activist judges today.

Scalia's judicial philosophy and methodology for constitutional interpretation are fairly simple to describe but not always easy to apply. Scalia admits as much. But he says, adherence to his approach would help to steer judges clear of policymaking roles. Further, Scalia says you can't beat his methodology with no methodology-and yet no other current justice of the Supreme Court is consistently applying an alternative theory of interpretation.

PHILOSOPHY IN PRACTICE

In applying his unique judicial philosophy, Scalia bucks some modern trends in constitutional interpretation. Chief among those theories is that of a "living" Constitution. The idea is that the document's meaning changes from age to age to accommodate the evolving values of the American people. This view of constitutional interpretation, which is shared to some extent by nearly all liberal legal scholars, gives judges tremendous power. After all, it is the judge who gets to decide which rights and responsibilities are valued by the public and which ones can be discarded. The obvious danger in such an approach is that the rule of law becomes rule by lawyers.

In politically incorrect splendor, Scalia says he likes his Constitution "dead." He argues that only a fixed and enduring charter can keep judges from reading new fads into the Constitution and less popular mandates out. He has pointed to the death penalty, ironically, as a good example of the dangers of a "living" Constitution. Although the text of the Constitution specifically contemplates capital punishment, three members of the Supreme Court during the last twenty years have declared it unconstitutional in all situations (see chapter six). In their view, government-administered execution is no longer in synch with "evolving standards of decency." Still other judges have limited states' use of capital punishment against certain classes of convicted criminals after deciding, in their view, that it is now "cruel and unusual."

As breezily as advocates of a "living" Constitution write the death penalty out of the Constitution, they also read new rights into the nation's charter. Whether one believes a right to sodomy should or should not be protected, the Supreme Court decided in 1986 that it was not protected for the simple and obvious reasons that the Constitution does not mention it and because there is no history of protection for the liberty to engage in sodomy. Indeed, the opposite is true. Until 1961, every state across the country had prohibited it. The Supreme Court in 1986 did not argue that the states were correct to ban sodomy. Nor did it say, conversely, that states must ban sodomy. All it said was that because sodomy was not protected by an explicit provision of the Constitution or by a long-standing tradition of protecting the act, the voters of each state were free to decide whether or not to protect the practice within their borders.

Just seventeen years later, the Supreme Court in Lawrence v. Texas (2003) said quite simply, "that was then, this is now." Sodomy is a constitutional right. The "living" Constitution apparently "matured" between birthdays number 195 and 212 to the point that it now protects an individual's right to engage in sodomy and bars states from regulating it. For textualists like Scalia, the result does not change unless the law, that is, the text, changes. Thus, neither sodomy nor any other favored activity can become a constitutional right without passage of a constitutional amendment. But as Scalia wrote, for the advocates of the "living" Constitution every issue is open to new and changing interpretations.

Though not to the degree it conflicts with the living Constitution theory, Scalia's approach also differs from a couple of modes of interpretation that are fashionable in conservative legal camps. While nearly all judicial conservatives agree that the text should control, they diverge over how to interpret ambiguous text or how to apply it to unforeseen circumstances. Some judicial conservatives suggest the proper interpretation can be discerned by examining the "original intent" of the Framers. They search the historical record in an attempt to figure out what James Madison or another drafter of the Constitution intended a particular provision-the Establishment Clause, for example-to accomplish. But this mode of interpretation suffers from its reliance on something that may be unknowable. To continue the example, if a search of the historical record revealed that James Madison intended the Establishment Clause to prevent only the declaration of a national religion, while every other Framer who supported its adoption intended the clause to prohibit any manifestation of government support for religion generally, whose intent should be determinative?

For this reason, among others, Scalia does not find intent authoritative. Instead, he searches for "original meaning," which he defines as the original understanding of the text at the time it was drafted and ratified. This theory of interpretation is known as originalism, as opposed to "original intent." To be sure, an originalist will look to many of the same historical sources that a proponent of original intent does; for example, the record of debates regarding the Constitution's ratification and the writings of the Framers. Scalia uses these sources not to determine the drafters' intent but to gain valuable insight into what the most informed people of the time understood the words of the Constitution to mean.

Scalia's reliance on context when interpreting the text of the Constitution also distinguishes him from those judicial conservatives, known as "strict constructionists," who believe all words should be interpreted narrowly. For example, where a strict constructionist might see the First Amendment as protecting "speech" and "press" and only activities that fit into one of those categories, Scalia says the First Amendment covers communication more generally. Thus, while a handwritten letter might not fall under "speech" or "press" for strict constructionists, he thinks such a letter is undoubtedly protected by the First Amendment.

Scalia's textualism (informed by originalism) is a unique judicial philosophy. Moreover, Scalia is unique simply because he has articulated a coherent judicial philosophy that he applies to all cases.

Continues...

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Excerpted from Scalia Dissents by Antonin Scalia Copyright © 2004 by Kevin A. Ring. Excerpted by permission.
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