October 5, 2012
By Jacob Combs
Without meaning to, I’ve ended up writing several of my posts this week about the Supreme Court and marriage equality, not because the Court has made any significant news on the issue, but because it is so likely to do so in the near future. Today’s installment comes, via the AP’s Mark Sherman, from Antonin Scalia, who spoke this week at an event in Washington to promote his new book and said that his ‘textualist’ philosophy of interpreting the Constitution makes deciding the most contentious issues the Court contends with some of the easiest to resolve. From the AP:
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.
He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.
This imaginary justice, Scalia continued, announces that it turns out “‘the Constitution means exactly what I think it ought to mean.’ No kidding.”
When faced with words like these, it’s difficult to know how to begin responding to them, even setting aside the incredible callousness of Justice Scalia’s addressing the death penalty with the words “give me a break” or the fact that he still sees fit to use the term ‘homosexual sodomy’ in the year 2012.
But, of course, the most significant implication of Justice Scalia’s comments is what it means for his jurisprudence, and how it reveals a judicial and constitutional worldview that is at best small-minded and disingenuously convenient and at worst reveals a surprisingly naive understanding of what the founders most likely meant the Constitution to represent.
On the surface, Justice Scalia’s judicial reasoning seems to exhibit a certain pat logical tidiness but, as his opinions demonstrate, his reliance on his own standard of review is spotty at best. The Constitution says nothing on the issue of abortion rights? That means that all restrictions on abortions are perfectly fine. The Constitution says nothing about whether corporations have a free speech right to spend money in electoral contests? That means corporations should be allowed to spend whatever they like. In my reading, Justice Scalia’s supposed philosophy means that he should have voted against the Citizens United decision. If the Constitution is silent on corporations’ right to free electoral ‘speech,’ that means the founders didn’t think they should have any.
In reality, though, this argument is an example of missing the forest for the trees. Unlike Justice Scalia, I hesitate to claim that I know what the founders of our country intended when they wrote the Constitution, either in terms of the actual words contained in the document or the motivating principle behind it. Still, I have my suspicions, and I think it’s worth pointing out that the most significant (and most fundamental) flaw with Antonin Scalia’s philosophy is that the Constitution is not meant to be specifically a governing document, but rather a guiding document for the people to use as they govern themselves.
What I mean by that distinction is that the founders (I believe) did not intend for the primary function of the U.S. Constitution to be a source for any final say on a matter of policy or law. Instead, they intended it to provide a framework for the primary institutions and broad procedures through which the American people would design and implement their own government. For instance, most people do not know that the only court explicitly required by the Constitution is the Supreme Court. The rest are left up to the Congress to implement as it sees fit. This doesn’t mean the founders thought that the United States should only have one court; on the contrary, it shows that they knew the needs of the people and the government would grow and shift over time, and that the people themselves would be best equipped to respond to those changes.
This last point gives the lie to Scalia’s supposed reasoning that a judge need only do an index search in the Constitution to resolve complex legal issues. The Constitution doesn’t say that gays and lesbians should be allowed to marry because that wasn’t a question in the 18th century. Similarly, it doesn’t say that women should be allowed to vote, since that wasn’t a question either.
No one expects Justice Scalia to vote to strike down Prop 8, or even DOMA, for that matter. But his remarks this week show just how shallow and simplistic his fundamental legal reasoning is. It’s remarkable that one of the most powerful judges in our country views the law not as something living that changes with American society, but as something set into stone in the 1780s. If that were true, we wouldn’t need judges. Thank goodness, then, that it is not.