SCALIA: JUSTICE OF INJUSTICE
Today, the Hammer must pound an official who does not belong to the executive branch of the current junta: the most rabid, frothing conservative ever to be placed in a position to destroy American ideals, Antonin Scalia.
Saturday's Washington Post ran the following AP story on Scalia's most recent right-wing public rant at the University of Mississippi in Oxford last Thursday. I quote the whole story because Scalia's remarks are remarkably revealing about the intellectual emptyheadness of conservative thought.
**********************************
Trying to Interpret The Constitution Risky, Scalia Says
Associated Press
Saturday, April 12, 2003; Page A05
OXFORD, Miss., April 11 -- Supreme Court Justice Antonin Scalia said it is dangerous to read between the lines of the 214-year-old Constitution, however tempting it may be.
Strict adherence to the words used by the authors still answers most modern problems, Scalia said.
Scalia, speaking at the University of Mississippi on Thursday, said he considers himself an "originalist" or a "textualist." He said he uses an 18th-century dictionary to make sure he understands just what the 1789 document's words meant to the men who wrote them.
"Over the last 50 years, the court has felt free to give the Constitution new meanings that weren't in the text originally," he said.
He cited grandparents' rights, abortion rights and the former ban on the death penalty as foreign to the Constitution's text. Eventually, such interpretations can render the document meaningless, Scalia said.
Scalia warned against the allure of a "living Constitution."
"It's a lovely thought, a lovely phrase, but it will destroy us or destroy the Supreme Court as we've known it," said Scalia, who was appointed to the court by President Ronald Reagan in 1986.
Scalia said democracy offers legislatures, not courts, the chance to address any issue.
"Persuade your fellow citizens and pass a law," he said.
(c) 2003 The Washington Post Company
****************************************
Right out of the gate, we have the right-wing mantra of "originalism" rearing its ugly and thick head. Is Scalia foolish enough to imagine that using an eighteenth-century dictionary somehow does not fall into the category of "interpretation"? I guess so. It appears that he does not recognize that, even with his beloved dictionary, he is still "interpreting." He has chosen to use as an interpretive tool a book that has only one virtue to recommend it: its relative contemporaneity with his target text. But his tool has a number of disadvantages as well.
In the first place, lexicographers know full well that the standards of scholarship surrounding eighteenth-century dictionaries fall far short of today's best dictionaries; from that point of view, Scalia would be better off using the Oxford English Dictionary if he really wants to know what a word meant in the eighteenth century, since it has copious information on word usage in different historical periods.
But Scalia could dispense with his dictionary altogether if only his interpretive skills were informed by a wide-ranging familiarity with the political literature of the time, in which the central concepts were discussed and debated by the very people who were involved in the creation of the Constitution. And it would be particularly important to pay attention to the Federalist Papers and to other writings of prominent Federalists and Anti-Federalists in order to understand as well as one can the meanings that the parties then assigned to the terms used in the Constitution. (Caution for those who really care about the truth: Right-wingers often assign meanings found in Anti-Federalist writers to terms found in the Constitution; this is a dishonest method of interpretation, since it imports the intentions of the Constitution's enemies into the words of its defenders and creators.)
On top of all that, even if it were possible to come up with a completely unambiguous interpretation of a particular part of the Constitution, Scalia still would have done only one portion of the work. It is here that the conservative mind-control machine has really wreaked havoc on thought in this country. Scalia and his ilk have created the impression in the public mind that deciding what the Constitution says is all that is required. Once that decision is made, he thinks, all we have to do is follow it. That is both wrong and wrong-headed.
They get this idea from the same place that Christian fundamentalists get the notion that all they have to do is "read the Bible literally" in order to do right. One cannot go into all the fallacies that attend this naive, indeed childish, belief. Let it suffice to say that those who believe this tend to be utterly unsophisticated about the difficulties involved in reading anything, let alone the Bible; they tend not even to know that the Bible was not written in English and that controversies about the meaning of every single verse have never been put to rest in the entire history of biblical thought; even if they do know that the Bible was not written in English, they tend to think that the meaning in the original languages is clear and can be transmitted to them by scholars or ministers; and they have no idea at all--because it contradicts their central assumption--that interpretation is always required on the part of anyone who is trying to make sense out of that complex and difficult collection of writings. Like these naive readers, "strict constructionists" maintain that the Constitution is a sacred document whose meaning is sacrosanct, which reveals its secrets only to those with special insight who must not question those secrets in any way.
This mind-numbing approach--which, contrary to the assertions of conservatives, does not make people more responsible and accountable human beings, but actually absolves them of responsibility for deciding the most important issues in life--is Scalia's notion of how the Constitution is supposed to function in American life: as a list of arcane commandments from which we dare not deviate lest we offend the spirit of God acting through our divine Founders. (Don't forget that he once accused those who try to "interpret" the Constitution--always excepting himself and those who agree with him--as obscuring the divine origins of law.)
But this approach shows such a deliberate refusal to recognize the spirit of the founders and the function of a judge that it should constitute impeachable incapacity to fulfill the duties of his office. As I said, deciding on the meaning of the Constitution is only one part of the work. The other part is deciding how it applies to a particular case. This second part of a judge's work is regarded hardly at all by Scalia. He seems to think that his special kind of "strict adherence" to the secret meaning of the Constitution (to which, of course, only he and those who agree with him are privy) will simply make most difficulties disappear.
This notion is extremely curious for a judge, whose job is supposed to be to interpret a law enacted by a proper authority, and then determine how that general rule applies to a given situation. If general laws were so easily applied to particular cases, there would hardly be any need for judges at all. And it hardly seems likely that the Constitution, which is called "a fundamental law" in The Federalist (No. 78) should be easier to apply to particular cases, since it must be brought to bear on innumerable issues, many of which the founders could never have foreseen.
Wherever Scalia gets his strange notions of judgeship from, they do not seem much like the notions of a judicial magistrate's duties presented in The Federalist.
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. (Federalist 78.)
Note that the founders expected the Constitution to need interpretation even in their own time. This means that they expected even their own contemporaries to have divergences of opinion on the meaning of the words themselves. That being the case, no eighteenth-century dictionary is going to be the magic bullet that solves all problems of interpretation. Wise judges are going to have to be more intelligent and sophisticated readers than Scalia to decide what the Constitution means, so that they can then compare that meaning to the meaning of subsequent laws.
Do the founders offer any help on this point? Again, this passage from The Federalist, discussing the role of the court in protecting the people from their own legislators, is instructive:
The complete independence of the courts of justice is peculiarly essential to a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (Federalist 78; emphasis mine.)
The help afforded here is in the phrase "manifest tenor." Not even an eighteenth-century dictionary is going to be able to make that phrase mean "original text." What the founders are saying is what ANY DECENT JUDGE should know: it is the SPIRIT of the law, not its LETTER, that should guide judicial thinking.
In the case of the Constitution, the founders had the wisdom to lay out its "tenor," its spirit, in the Preamble:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
This text establishes six ends that the Constitution is intended to serve: 1. union; 2. justice; 3. domestic tranquility; 4. defense; 5. general welfare; 6. liberty.
The manifest tenor of the Constitution, therefore, is that it promote these six ends. And that fact alone makes the job of a decent judge very difficult, because not only does he have to decide how any particular piece of the Constitution relates to these six ends, but he also must decide how any other piece of legislation relates to these six ends. It is entirely possible that a piece of legislation might encroach on one of the six while at the same time promoting one of the others. For instance, a law against discrimination might inhibit the liberty of a racist while at the same time promoting justice.
A supreme court justice, then, if he or she is worthy of holding the office, should be capable of thinking through complex questions that balance all of the six ends served by the Constitution in order to come to a rational assessment of what the Constitution means when it is applied to any particular case. Scalia's simplistic fundamentalism--which tries to establish an "original text," a "letter of the law" that obviates complex reasoning--makes the task of penetrating judgment impossible; and this makes him entirely unfit to be a judge anywhere in America, let alone on the Supreme Court.
Of course, all of this has been presented under the assumption that Scalia really believes what he says about "original intent." But of course, like most conservatives, he only believes what he says when it is convenient for him. When the "original intent" argument serves his purposes, he holds out what he insists is the letter of the law and demands no deviation from it. When it does not suit his purposes, as in Bush v. Gore, he trashes the letter of the law and devises a sophistical argument that he insists is the spirit of the law. (The Bush v. Gore decision is so ludicrously unjust that he wouldn't even sign it, and he went to the unheard-of length of trying to say that it set no precedent--another refusal to acknowledge the basic duty of a justice on the Supreme Court, which is to set the precedents that must be followed by our entire legal system.)
Elsewhere Scalia has said in public that new laws based on interpretations of the Constitution, such as the many new rights that have been enacted into law since the sixties, cannot be guaranteed to increase freedom--they might well decrease it.
This kind of remark is a clue to the conservative cast of mind in general. Conservatives think the Constitution is all about protecting freedom. This is because they believe that they have or can get whatever they need, and they want to be left alone to enjoy those benefits. Thus they have little concern with, say, justice or the general welfare. This simplifies their thinking greatly. Unfortunately, it does so while increasing their tolerance for injustice and inequity.
This also explains why conservatives are always trying to protect the status quo--that is, the situation in which they possess the majority of the benefits. And it also explains why they love the "original intent" argument: because they can cast it as "the way things were meant to be," namely, that I be left alone to enjoy my blessings. "Don't change anything!" they say. "I like things the way they are!"
G. K. Chesterton had this to say about conservatism:
All conservatism is based upon the idea that if you leave things alone you leave them as they are. But you do not. If you leave a thing alone you leave it to a torrent of change.
This truth is totally overlooked by conservatives, who imagine that if they can just hold on to the old customs, the old values, the old social order, their blessings will remain forever in their possession. That is magical thinking in a world where change is the only constant. The truth is that we need to keep changing and updating our beliefs, our values, and our laws, or we will eventually find that reality has left us behind on the dustheap of history.
Of course, Chesterton is wrong that conservatism is based on leaving things alone. As I have said before, it is based on selfishness. It merely uses the idea of leaving things alone as the primary means of promoting its selfishness.
So the next time you hear one of Scalia's rants about the sacrosanct nature of the Constitution, recognize it for the miserable sham that it is: another ultra-conservative, fundamentalist, simple-minded, hypocritical attempt to protect and promote the unjust, inequitable, anti-social privileges currently possessed by the conservative class.