Friday, July 21, 2006

BOOKS: Scathing Scalia

One of the most enjoyable parts about taking Constitutional Law in law school is reading and thinking about Antonin Scalia's dissents. (See Romer v. Evans; Lawrence v. Texas; U.S. v. Virginia) Justice Scalia is so vehement, so definitive in his beliefs, and often so colorful in his descriptions of legal situations and the logic behind his reasoning, that no matter where one stands on the political spectrum, one cannot help but give him credit. Of course, this is also a man who believes in a super-rich homosexual cabal that acts as a political juggernaut, pulling the strings of the nation's consciousness, and does not hesitate to explain such conspiracy theories in his dissents. Scalia is both a man to respect for his intellect, and seriously question for his motivation. Thus, I picked up a copy of A Matter of Interpretation: Federal Courts and the Law at the St. Paul Central Library.

The book, published in 1997, contains Scalia's essay "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws," which was extracted from a series of Tanner Lectures at Princeton. His essay is followed by commentaries from Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin.

Throughout the essay, Scalia lays out his theories of interpretation, in several different areas. He bemoans the state of statutory interpretation; discusses "textualism"; offers his disgust for the use of legislative history in modern court cases; and finally, looks at constitutional interpretation.

While Scalia eloquently puts forward these theories, much of what he writes ultimately falls apart. His notion is that we look for the "original meaning" of constitutional provisions, and then determine how that would apply to new circumstances of today. What's wrong with this, and what several of the commentators point out, is that this leaves much of the decision up to judicial discretion, which is precisely what Scalia loathes. Take free speech, for example. The First Amendment reads: "Congress shall make no law [...] abridging the freedom of speech [...]." That's it. It appears to my eyes, and to anyone with common sense, that the drafters of the Constitution deliberately left this - and other similar provisions like "equal protection under the laws" (which was drafted and added to the Constitution much later than the First Amendment)up for future interpretation to constantly changing situations. This particular point becomes even stronger when considering the fact that the constitutional drafters purposefully included specific language in other provisions, such as the make-up of our representative government.

There is much, of course, to think about in this book. The above argument is only the tip of the iceberg. Politically, I stand on very different ground than Justice Scalia, but I cannot just write him off, as many people who have never read a Supreme Court opinion (or the Constitution, for that matter) would like. No matter how you dice it, he has legitimate arguments that demand legitimate responses. Which why anyone who chooses to bitch about conservatism on the Supreme Court ought to read pay more attention.

1 comment:

xtrachromosomeconservative said...

"this is also a man who believes in a super-rich homosexual cabal that acts as a political juggernaut, pulling the strings of the nation's consciousness, and does not hesitate to explain such conspiracy theories in his dissents", I don't really recall that part in Romer v. Evans, was that Lawrence v. Texas. Nice editorializing nonetheless.