Thursday, September 01, 2005

Strict Constructionist?

CNN reported yesterday that Justice Antonin Scalia is "saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people."

"I am questioning the propriety -- indeed, the sanity -- of having a value-laden decision such as this made for the entire society ... by unelected judges," he said.

"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?" he said, to laughter and applause.

Ha ha, oooh, that was hilarious. Allow me to point out some irony:

Article II, Section 2 of the U.S. Constitution expressly gives the President -- with the advice and consent of the Senate -- the power to appoint Supreme Court Justices. Article III Section 2 says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution."

Scalia has said he reads the text of the Constitution in a literal manner, a method in which the "plain and ordinary meaning" of the text guides interpretation. "Words mean what they mean." If that is true, it hardly seems appropriate for him to question the "sanity" of the Framers when they decided that judges should be appointed, and therefore expressly unaccountable to the electorate, and also the Court's authority to rule on "all cases" in which there is a Constitutional issue.

Scalia apparently does not comprehend -- or is intentionally obscuring -- the distinction between what is "legal" and what is "moral." Exceeding the speed limit is not amoral, but it's illegal for a plethora of practical reasons. Deciding that slaves only counted as three-fifths of a person in determining a state's population for purposes of Congressional representation was immoral, but was the law.

Codes of "morality" vary from person to person and culture to culture. In present day America, many people feel it is immoral for an unmarried couple to live together, but it's legal. Many people feel it's immoral to have children out of wedlock, but it's legal. Britney Spears' first marriage lasted 55 hours: legal.

Scalia believes the Court has no jurisdiction over "moral issues not addressed in the Constitution." In a way, he's right: they have no jurisdiction over morality. But when one group's definition of "morality" butts up against the Constitutional pillars of due process and equal protection, then the Court has the responsibility to intervene to determine the legality.

If anyone feels conflicted between what the Constitution says and what they'd like it to say, it's Antonin Scalia.


Sidenote: I think CNN has been reading my blog. The headline for this article was "Scala blasts 'judge moralists'." You have to go back to July 27 to find a headline that has the word "slams" in it. Hurray!


Matthew said...

Excellent post.

Just. Excellent.

Nathan said...

Clearly the Onion reads your blog as well ;)

Genie Grants Scalia Strict Constructionist Interpretation Of Wish

August 31, 2005 | Issue 41•35

WASHINGTON, DC—A genie freed from a battered oil lamp by Supreme Court Justice Antonin Scalia granted the conservative jurist a strict constructionist interpretation of his wish for "a hundred billion bucks" Monday. "Sim sim salabim! Your wish is my command!" the genie proclaimed amid flashes of light and purple smoke, immediately filling the Supreme Court building with a massive herd of wild male antelopes. When Justice Scalia complained that the "bucks" had razed the U.S. Supreme Court building, trampling and killing several of his clerks and bringing traffic in the nation's capital to a standstill for hours, the genie said, "Your honor, your wish is a sacred and unalterable document whose interpretation is not subject to the whims of society and changing social context."

Aethlos said...

God you're so brilliant. I just love your blog. Fucking delicious.

Esther said...

Not to be mildly controversial or anything, but I believe Scalia is addressing what the Supreme Court terms a "political question?" A political question is something that the court chooses not to decide, rather it leaves it to Congress or the people or the states. It had a grand tradition of use at one time. Basically, a political question is one which ought to be decided by a more representative body than the Supreme Court.

Scalia is not saying that there is a problem with unelected judges. His argument is that unelected judges should decide cases of law and equity, not political questions.

(Aside: Law is obvious. Equity deals with problems of fairness that the law cannot answer.)

For example, Scalia sees abortion rights as a political question because it is such a controversial matter. It should not be decided by unelected powers. It is too mixed in the politics of the day and according to this theory should be dealt with by authorities that are closer to the people and can appropriately resolve the tension that exists. He is not suggesting that justices should be elected, he is not questioning the Framers, he is merely applying a different idea.

More to the heart of the matter. I am not going to change your mind, so why bother writing this? I am mostly surprised that no one else disagrees. I hope to write a thoughtful, but provocative response to your post. I appreciate it that you think about these matters and that you use evidence in your thoughts. I simply disagree with your conclusions.

Yes, there is a difference between morality and legality. Since you think the Supreme Court's more pioneering decisions are okay, what do you think of the Dredd Scott decision? It follows the tradition of the court choosing to act on a political question. In this decision the Court decided that Dredd Scott was neither a citizen, nor a person and he would not be in any state. The Court would never admit it, but many of the decisions made today are based on the same sort of reasoning that went into Dredd Scott. So, if the Court infringed on your view of morality in its recent bent of opinions, would you say it's okay? If another case similar to Dredd Scott came down, would that be all right?

Andy said...

Esther, thank you so much for dropping by and for your very well-written response. Dissent is always welcome here! And naturally I don't fancy myself a legal scholar, by any stretch of the imagination.

I think your explanation is probably how Scalia would choose to justify himself, but I suspect his real motivation for deferring these issues to Congress is that he knows a strict Constitutional reading prevents him from taking one segment of the population, defined by arbitrary qualities such as sexual orientation, and ruling that they are entitled to a different set of rights than the rest of the population. Clearly he doesn't want gay marriage, and for him it would be more expedient to have the Republican-controlled Congress kill it for him.