Letters

From the March 1998 issue

(Page 2 of 5)

But elsewhere, his "original intent" approach has often led him to the side of the state. If a right must be found in the literal text of the Constitution or Bill of Rights (or not at all), many liberties cease to exist. Justice Scalia, like his almost brother Robert Bork, is at bottom a legal positivist: No rights exist save those which are created by the state, and so, unless the state is constrained by the authority of its supreme constitution, its power is unlimited.

In a speech in October 1996 at the Catholic University School of Philosophy, Justice Scalia stated there is no "constitutional right to die" (a view later adopted by the Court in "right to die" cases this year), adding "all sorts of rights that clearly did not exist at the time of the Constitution have been held by the court and are thought by justices of the court to exist today." He has therefore opined that there is no right of privacy (the word doesn't appear in the Constitution), and hence the state may restrict a woman's access to abortion. There is likewise no constitutional protection for gay rights (where is homosexuality mentioned in the Bill of Rights?) and hence the state may prohibit homosexuality. Most libertarians would agree that liberty includes the right to control one's body, to end one's life, and to choose whom one sleeps with. Yet the theory of textualism provides no footing on which to argue for these rights on a constitutional basis.

The siren song of Scalia's textualism should not ensnare advocates of liberty. Its premise is fundamentally flawed: The Framers were not legal positivists. They believed, as good Enlightenment thinkers, that people held rights originally and independently of the state; that the state derived its authority from "the consent of the governed."

What was not delegated to the state was reserved to the people. The powers of the federal government were limited to those delegated to it. Hence the adoption of the Ninth Amendment, which is nonsense in the jurisprudence of textualism: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The essence of Justice Scalia's approach is to deny the existence of any fundamental right unless it is "enumerated" in the Bill of Rights. This stands the structure of the Bill of Rights on its head. Under a "literalist" approach, what unenumerated rights could have been "retained by the people"?

Justice Scalia's textualism applied to the Constitution gives birth to the very nightmare foreseen by Hamilton in Federalist No. 84. There he argued against the need for a Bill of Rights, for such an "enumeration'' was not only "unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more [powers to the federal government] than were granted." By requiring every right to be specifically articulated, Justice Scalia gives the state carte blanche to claim "more [powers] than were granted" it.

If textualism triumphs as the jurisprudence of the next century, the scope of liberty under the Bill of Rights will diminish. In my view, the Living Constitution theory, while theoretically flawed, has at least helped keep intrusive government at bay during most of this century. Should it finally be discredited, the reins on the state will loosen even more. But this is not to say we should all become Living Constitutionalists as a matter of self-defense. The choice is not between an originalism that limits rights to an enumeration or a Living Constitution that knows no clear meaning for words; there is a third approach, all but ignored in the discourse of the Court, but which is truer to the Framer's beliefs: that rights precede government, not the other way around.

Don Erik Franzen
Topanga, CA

I'd be a lot more impressed with Justice Scalia's book if he didn't show signs of being dangerously out of touch. Looking to illustrate how Americans no longer value their liberties, he said, "So also, we value the right to bear arms less than did the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard."

Few tears shed, in a country where the National Rifle Association has 10 times the membership of the American Civil Liberties Union? Where militias are organizing in every state, primarily because of violations of the Second Amendment? Where a quarter to a third of the population exercises this right? Where even this right's most virulent opponents have to pretend they don't mean to abolish it? Where the worst (private sector) terrorist act in history was provoked by deaths caused by the government while infringing this right? I've got to ask: What planet did Scalia spend the last decade on? The planet of the governing elites, I suppose.

I wouldn't be so concerned about this if I thought Scalia would pursue his textual analysis to its logical end, come hell or high water. But as Michael Greve notes, he won't. So much of the federal government is starkly unconstitutional
by any honest analysis that even Scalia shrinks from doing the duty he's sworn to do: upholding the Constitution, rather than precedent. The extent to which he will do his duty is determined as much by his perception of the limits of public tolerance as by legal theory, and his perception seems grossly awry.

The apathetic majority won't care if the Court upholds or strikes down our rights. The minority who do care might plunge this nation into civil war if the Court attempts to abolish the wrong liberty. It would be outrageous enough if the Court did such a thing understanding the consequences of its act. Wouldn't it be a joke if they provoked a revolution out of nothing more profound than ignorance?

Brett P. Bellmore
Capac, MI

Michael Greve offers a good summary view of Scalia's constitutional views and his implementation of them, but I have to correct his description of the Romer v. Evans opinions. First, Scalia's dissent was hardly an "ideological critique." It was based on irrelevant references to Bowers v. Hardwick and polygamy laws, and some hyperbolic mischaracterizations of the majority opinion.

At one point, Scalia stated--falsely--that the majority opinion had declared unconstitutional the very process by which Amendment 2 was adopted. He also stated that the majority opinion had pronounced "animosity" towards homosexuality to be "evil" and "bigotry." These loaded words never appear, nor are they even hinted at, in the majority opinion.
It is difficult to characterize these plain falsehoods as "calculated sarcasm." Rather, they put an ironic twist on Mr. Greve's statement that Scalia "cannot reason with" his opponents.

Mr. Greve also errs in stating that "[t]he majority did not bother to cite a single precedent or to marshal anything one might call an argument." I can only conclude that Mr. Greve never read the opinion. The truth is that it was grounded in the Equal Protection Clause of the 14th Amendment and provided strong (while not impervious) arguments regarding its applicability against Amendment 2. Over 20 relevant precedents were cited in building this argument. But then, perhaps Mr. Greve's own hyperbolic statement was modeled after Scalia's "calculated sarcasm."