In Defense of Judicial Activism

D.C. v. Heller and the failures of conservative judicial restraint

Damon W. Root | September 23, 2008

Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights. For instance, in his dissent in Lawrence v. Texas (2003), where the majority nullified a state law banning homosexual activity, Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new ‘constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Look up Scalia's dissents in cases as different as Planned Parenthood v. Casey (1992), where the majority upheld abortion rights, or Boumediene v. Bush (2008), where the Court recognized habeas corpus rights for enemy combatants, and you'll find similar arguments. As Scalia likes to say, when the Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way.

So it's no small matter that one of the country's most prominent conservative judges is now criticizing Scalia for being a judicial activist. In a provocative new article forthcoming from the Virginia Law Review, federal appeals court Judge J. Harvie Wilkinson III surveys Scalia's recent handiwork in the landmark gun rights case D.C. v. Heller (2008) and finds it seriously lacking. "Heller," Wilkinson writes, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."

(Story continues after video box)

Click above to watch Damon W. Root's August 26 comments on John McCain's and Barack Obama's Supreme Court pandering during Rev. Rick Warren's Saddleback Forum.

In fact, Wilkinson compares Scalia's opinion in Heller to the Court's recognition of abortion rights in Roe v. Wade (1973), which is about the worst thing one judicial conservative could say to another. In Wilkinson's view, Heller grounded a debatable right in an ambiguous piece of constitutional text, it opened the door to decades of future litigation, it disregarded clear legislative preferences, and it aggrandized the judiciary at the expense of the other branches and the people—"the same sins," he argues, that made Roe so odious.

Wilkinson certainly has a point. Following Scalia's own rhetoric of modesty and restraint, why should the Supreme Court substitute its wisdom for that of the local officials directly accountable to the inhabitants of Washington, D.C.? What makes handgun bans and mandatory trigger locks clearly unconstitutional but not other "longstanding prohibitions," to borrow Scalia's phrase? More importantly, why entangle the federal courts in the political thicket at all? As Justice John Paul Stevens noted in his dissent, "no one has suggested that the political process is not working exactly as it should in mediating the debate between advocates and opponents of gun control."

That's the key point (though Scalia is typically the justice making it). With rare exception, judicial restraint means letting the majority rule. Wilkinson, who clearly disapproves of D.C.'s gun ban, is at least consistent about it. But the whole point of the judiciary is to actively police the other branches, to act, as James Madison put it, as "an impenetrable bulwark against every assumption of power in the legislative or executive."

Wilkinson gets that exactly backwards, writing, "The largest threat to liberty still lies in handing our democratic destiny to the courts." But in fact, the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights.

Take Pierce v. Society of Sisters (1925). At issue was an Oregon initiative, which had been spearheaded by the Ku Klux Klan and other anti-Catholic groups, requiring that all children between the ages of eight and 16 attend public school. In his opinion for the unanimous Court, Justice James McReynolds declared that, "the child is not the mere creature of the state" and nullified Oregon's law for unreasonably interfering "with the liberty of parents and guardians to direct the upbringing and education of children under their control."

Under Wilkinson's vision of judicial restraint, however, the Court somehow got it wrong in Pierce yet got it right in Korematsu v. United States (1944), where it deferred to President Franklin Roosevelt, upholding his wartime internment of Japanese Americans. In both cases, Wilkinson's argument is that if the voters have a problem, they should turn to the ballot box, not the courts.

If anything, such examples confirm that the last thing we need is more or better judicial restraint. What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.

Damon W. Root is an associate editor of reason.

Comments

Kolohe|9.23.08 @ 12:25PM|#

a principled form of judicial activism; one that consistently upholds individual liberty while strictly limiting state power.

Agreed.

But it's sure as heck ain't personified in Scalia.

|9.23.08 @ 12:34PM|#

What American needs, writes Damon Root, is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power.

While this is true, Scalia is the complete worst example.

I could see using Thomas as an example (especially the Clarence Thomas of the last 5 years or so) -- but Scalia?? Sheesh!

|9.23.08 @ 12:35PM|#

As Scalia likes to say, when the Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way.

I missed that part in his ruling on Raich.

|9.23.08 @ 12:35PM|#

The only thing consistent about Scalia's ruling is that he figures out which one would piss of liberals and/or hippies the most and picks that side.

|9.23.08 @ 12:37PM|#

No, the only thing consistent about Scalia is his deference to the police and their "new professionalism".

|9.23.08 @ 12:38PM|#

"Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights."

This premise is incorrect. He's never described himself as advocating judicial restraint, and has actually derided the companion term "judicial activism."

What he is, is an "originalist," meaning, roughly speaking, that Constitutional text means what it meant when the document was ratified. This sometimes requires judges to be "activists" and sometimes not. It also does not always stack the deck in favor of the Libertarian Party platform.

|9.23.08 @ 12:40PM|#

"Scalia argued that the Texas legislature's 'hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.'"

No. But maybe, just maybe, it should be swayed by the arguments put forth in the constitution. Things like inalienable rights and such are more important and more durable than flights-of-fancy such as a mere majority opinion in some state, subject to the spirit of the times.

Similarly, a majority in many states was in favor of slavery. Doesn't make it right. The majority will often vote laws that make life more comfortable to them, but which discriminate terribly against some minority. An important part of THIS democracy is that we recognize that 'majority rule' has weaknesses, and we have a Constitution to help defend *against* the majority opinion.

Seems hypocritical of Scalia. Just as often he will cite the Constitution in his dissent or opinion, but here he cites the majority will. Whichever matches his conservative beliefs. He's just as much a political activist judge as the left-leaners, only trying to hide it as much as he can.

Dagny T.|9.23.08 @ 12:52PM|#

his deference to the police and their "new professionalism".

Long live the "new professionalism"?

Nah, that way is too scary.

|9.23.08 @ 1:02PM|#

Long live the "new professionalism"?

"Death to Scaliadrome!"

This shirt with "Spectacular Opinion" would be funny too.

Jeffersonian|9.23.08 @ 1:03PM|#

Actually, Scalia's ruling in Heller makes perfect sense and is completely consistent with his originalist/strict constructionist philosophy.

As this article states, Scalia will defend strongly any specifically enumerated right in the constitution from federal authority. "The right of the people to Keep and bear arms" is unambiguously a clear enumerated right AND it was being limited by a federal authority. Where Scalia gets away from say, a classical liberal position, is when he refuses to defend liberties that are unenumerated (ie homosexuality, pot possession etc) from State governments.

I think Scalia is more consistent than the other members of the court and is actually the most libertarian besides Thomas, but they definitely wouldn't qualify as "Reason libertarians". I'm kind of glad about that personally.

|9.23.08 @ 1:12PM|#

"The right of the people to Keep and bear arms" is unambiguously a clear enumerated right AND it was being limited by a federal authority.

His position in the Raich case seems to be undercut this position, no? It's pretty hard reconcile an originalist reading of the commerce clause with his coming down in support of the right of the Federal government to "regulate" it.

Dagny T.|9.23.08 @ 1:18PM|#

This shirt with "Spectacular Opinion" would be funny too.

In a creepy way, yes. Scalia even kind of looks like Barry Convex.

lunchstealer|9.23.08 @ 1:20PM|#

"Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, [executive branch officials, military officers, intelligence agencies, law enforcement officers, elected corporate boards, their appointed CEOs, CFOs, and other corporate executives, and troop leaders and patrol leaders within certain troops of the Boy Scouts of America] striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights [that Scalia likes]."

Fixed it for you.

|9.23.08 @ 1:26PM|#

Scalia even kind of looks like Barry Convex.

Shit, good point. That's creepy too.

"Sure, sure...what about the other reasons? Why deny you get your kicks out of watching torturing and murder?"

Jeffersonian|9.23.08 @ 1:31PM|#

I said he is more consistent than the others. That doesn't mean that I disagree with some of his positions. Also, Congress does have the authority to "regulate interstate commerce". I agree with Thomas on the Raich opinion, but if you see Scalia as a strict constructionist you can understand that 1. medical marijuana use is not specifically enumerated as a right and 2. Congress does have authority to regulate interstate commerce and 3. They've used this power to justify controlling marijuana.

I think that is weak myself, but I see it as fairly consistent with that sort of judicial philosophy. Personally, I find the Rawlsian type of views of the liberals far, far more dangerous than Scalia's strict constructionism.

LarryA|9.23.08 @ 1:33PM|#

What American needs, writes Damon Root, is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power.

Of course such judicial activism wouldn't be necessary if the legislative and executive branches used the same uphold-individual-liberty-limit-state-power criteria. IOW followed the Constitution.

I'm not holding my breath.

Dagny T.|9.23.08 @ 1:40PM|#

"Sure, sure...what about the other reasons? Why deny you get your kicks out of watching torturing and murder?"

Now if Scalia ever pulls a non sequitur about the new spring line in one of his dissents, we're in trouble.

"I live in a highly excited state of overstimulation."

|9.23.08 @ 1:47PM|#

but if you see Scalia as a strict constructionist you can understand that 1. medical marijuana use is not specifically enumerated as a right and 2. Congress does have authority to regulate interstate commerce and 3. They've used this power to justify controlling marijuana.

This, of course, requires Scalia to buy into the biggest departure from strict construction/original intent of all time, the one that turned the Commerce Clause into a grant of near-plenary power.

Ask yourself, why did there need to be a Constitutional amendment for the federal government to criminalize alcohol, but not to criminalize marijuana?

|9.23.08 @ 1:51PM|#

"Because it has something...that you don't have, Dagny. It has a philosophy, and that is what makes it dangerous."

Mad Max|9.23.08 @ 2:14PM|#

"What he is, is an 'originalist,' meaning, roughly speaking, that Constitutional text means what it meant when the document was ratified."

I believe that Scalia calls himself a "faint-hearted originalist," that is, he will apply the original understanding (as he sees it) unless there's a Supreme Court precedent to the contrary, in which case he tends to go wtih the precedent.

This answers the riddle of how he voted in *Raich.* Sure, regulation of local agriculture can't be reconciled with the original understanding of the Commerce Clause, but there was a New Deal *precedent* that Congress could limit the wheat you grow on your farm for your own use. What applies to wheat applies to weed, hence, Congress can stop you from growing weed. Original understanding be darned.

Scalia has criticized *some* precedents, most notably the military-tribunal case of *Ex Parte Quirin.*

|9.23.08 @ 2:18PM|#

his comments about torture not beign "punishment" therefore it is legal is not my favorite.

cheney: tell me the death start sequence
victim: 345678911
Cheney: Your lying! I'm gonna crush your kids testicles now...but this isn't punishment,I was gonna do this anyway. A impartial judge agrees...

|9.23.08 @ 2:20PM|#

Of course such judicial activism wouldn't be necessary if the legislative and executive branches used the same uphold-individual-liberty-limit-state-power criteria. IOW followed the Constitution.

Arguments like these make me shake my head. It's like asking a scorpion not to sting.

The founders knew that legislative and executive branches will do whatever they can to maximize and strech their speres of power...so they created a judicial branch with the power to slap them down.

Isn't that kind of the whole point of having a judiciary that is a co-equal branch?

The problem is that the courts have abdicated their responsibility in limiting the reach and scope of the other branches of government and defer much too much to their desires.

Kolohe|9.23.08 @ 2:22PM|#

1. medical marijuana use is not specifically enumerated as a right and 2. Congress does have authority to regulate interstate commerc

Bulls***.

Unless I have my facts wrong, the Raich case was an example of a person who grew their own plant from items procured enitrely within in the state of California for personal use.

If this is interstate commerce then everything is.

(Yes 6 SCOTUS justices disagree with me. And I think 9 of them disagreed with me in Wickard v. Filburn)

Comrade Laissez-Faire|9.23.08 @ 2:42PM|#

The ideal role of the Supremes is to interpret the Constitution and defend minorities from the tyranny of the majority within a constitutional framework.

However, as falible human beings, political ideology influences their decisions, and Scalia is without a doubt a Theopublican who uses his position to promote a Theopublican agenda. And likewise, the authoritarian Supremes of the center-left promote their agenda, which includes such issues as collectivist eminent domain that is not always in the best interests of "the public good".

In addition to abolishing the slaveish jury system, the overhauling of the judicial system in the U.S. needs to include three judge panels as to opposed to just one judge hearing and deciding on criminal and major civil cases* and challenges.

*Those not litigated in private courts of binding arbitration.

jtuf|9.23.08 @ 2:53PM|#

If anything, such examples confirm that the last thing we need is more or better judicial restraint. What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.

Agreed. The Courts should strike down a law if, and only if, a clear reading of the constitution calls for it. I can see striking down a ban on homosexuality by applying the "peaceful assembly" clause of the 1st ammendment.

Jeffersonian|9.23.08 @ 3:01PM|#

Kolohe,

I fully agree with you about interstate commerce and marijuana. Scalia was wrong to follow the government's argument over controlling marijuana in that case, and so I support Thomas' dissent. That is one time at least where Scalia violated his own judicial philosophy. However, I still stand by my view that he is more consistent than the Rawlsian libs on the court.

|9.23.08 @ 3:39PM|#

""""The right of the people to Keep and bear arms" is unambiguously a clear enumerated right AND it was being limited by a federal authority. """"

You left out a very important part that says that right shall not be infringed.

Now we can argue what infringed means.

Tsu Dho Nihm|9.23.08 @ 3:55PM|#

Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights.

And that's the problem I have with Scalia (and most judges) right there. They simply don't understand (or don't care) that the Constitution was a limitation upon government and not upon the people. "Specifically enumerated constitutional rights" should actually be irrelevant, considering that Congress and the President are only supposed to have the powers specifically defined in the Constitution. So, most of the things the government does should be ruled unconstitutional, not because there are "specifically enumerated constitutional rights" preventing the action but because there are not specifically enumerated powers that allow the government to take the action.

|9.23.08 @ 5:46PM|#

What American needs, writes Damon Root, is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power.

Of course such judicial activism wouldn't be necessary if the legislative and executive branches used the same uphold-individual-liberty-limit-state-power criteria. IOW followed the Constitution.

I'm not holding my breath.

Neither am I, Bro.

The trouble with this individualist view is where are we going to get these principled judges from?

If there are a pool of principled people, willing to work for government, why wouldn't they in fact be in the legislative and executive branches first, so we don't need judicial review? If they are not there, than how can we expect the executive to appoint them and the legislative branch to confirm them? Why would they?

And even if they were appointed, how do we really know they are principled enough to do what we believe they should do? The tendency of the state is always to grow. History shows there have been some principled SC Judges, but usually in the minority. The Constitution was pretty much gutted like a trout with the Marshal court in the very beginning of our history, anyway. Even judges libertarians tend to like were hardly consistent libertarians. Thomas for all his faults may be more consistent than some we remember fondly for a couple of decent decisions while we ignore the rest.

No, the Orange Line Mafia Stato line simply cannot stand up to scrutiny. When all is said and done, the Paleos over at Mises are correct:
You can't depend on folks who are nice to you at a Beltway cocktail party to be consistent libertarians and use the court to impose libertarian values on society.

MJ|9.23.08 @ 8:40PM|#

"In Wilkinson's view, Heller grounded a debatable right in an ambiguous piece of constitutional text, it opened the door to decades of future litigation, it disregarded clear legislative preferences, and it aggrandized the judiciary at the expense of the other branches and the people-"the same sins," he argues, that made Roe so odious."

Wilkinson's rip on Scalia's opinion in Heller only stands if you agree with Wilkinson's premise that 2nd amendment rights are amibiguous and debatable. If you don't accept that premise then his argument falls apart as then the case clearly falls into "striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights". Heck, since DC is the federal district the DC council only has the right to pass laws by the sufferance of the Congress, therefore all the laws it passes emanate from the delegated authority of Congress, so you cannot even argue states' rights on this one.

wickscherrycoke|9.24.08 @ 7:33AM|#

This is the same misunderstanding of judicial activism and restraint. Judicial restraint does not mean slavish deference to the political branches. It means enforcing the mandates of the constitution while maintaining a respect for truly political issues that should be left to the political branches. This is how John Marshall defined the role of the Court. It is not "judicial activism" to strike down a law that violates the constitutional guarantee of free speech. It is judicial activism to declare that the constitution somehow mandates a minimum wage or a minimum level of per-pupil school funding.

wickscherrycoke|9.24.08 @ 7:41AM|#

Aside: Have you noticed that Pierce v. Society of Sisters, a significant Supreme Court decision, is only fourteen paragraphs and one sentence long? Decisions prior to the 1950s were short and to the point. If that decision were issued today, it would have taken up at least twenty pages, with all kinds of dicta and other unnecessary verbiage. We would be well served if we returned to the days of economical decision-drafting and left the legal theorizing to the law professors.

|9.24.08 @ 9:57AM|#

Damon, I usually like your articles, but can we please drop the activism - restraint meme? It is too vague a definition to keep bringing up. All the legal definitions I've read (Black's legal dictionary for one), call judicial activism judges judging by their conscience or opinion rather than by the letter of the law. Even to overturn bad precedent if it contradicts the Constitution is still judicial restraint, not activism. Activism that upholds individual liberty while restricting state power is called 'judicial restraint', since the Constitution does just that.

Mikro|9.24.08 @ 7:34PM|#

If I'm reading this properly, then Root is suggesting that any of the freedoms mentioned in the Bill of Rights, let's take freedom of speech as an example, can only be guaranteed at a federal level but that any of the States could place whatever controls they desire on freedom of speech.

|9.24.08 @ 9:02PM|#

The author defined judicial restraint as "the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights." However, Heller _did_ strike down a law that unequivocally ran afoul of a specifically enumerated constitutional right -- so that case is irrelevant to the debate.

What upset people about judicial activism in the 1970s, by the way, was not the upholding of rights not specifically enumerated in the Constitution. Rather, it the creation of "rights" that the Founders would quite obviously have denied were rights, or even worse yet, activities the founders would have considered to be crimes.

Compare abortion with slavery. The Constitution did not forbid slavery, but the major writers of the Constitution admitted that slavery was an evil that was inconsistent with their political philosophy -- at that time they just didn't see any politically practical way to end it. Similarly, even though the Constitution did not forbid racial segregation, segregation was inconsistent with the Constitution's plainly stated vision of political equality. Ending segregation simply removed an anomaly in the application of the Constitution's well-understood principles.

In contrast, it is difficult to imagine that _any_ of the Constitution's writers would have considered it a right of a woman to kill her fetus. It simply cannot be construed as a right that the Constitution merely neglected to mention explicitly or simply lacked the political consensus to enact -- it was something that the founders considered to be a crime!

When you take something that the Founders considered to be a crime and claim that the document they wrote demands its protection -- that simply isn't a good-faith effort to interpret their words.

Ben1|9.25.08 @ 2:28AM|#

In contrast, it is difficult to imagine that _any_ of the Constitution's writers would have considered it a right of a woman to kill her fetus.

Ok, we've established that you find this difficult to imagine. We have not established that your failure of imagination extends any further than your own head.

...it was something that the founders considered to be a crime!

Now we have your imagination leaping from the former failure-to-perform state to an assertion about their position on an issue that is not backed up by any objective fact.

From here on, your argument founders.

We don't know what they would have thought, and pretending we do is simply an exercise in disingenuous babbling.

The simple fact is that the constitution doesn't address the matter; therefore (see amendments 9 and 10) the right devolves to the states, if the state legislature can can agree upon it and continue to hold office against those holding counter-opinions after the people react to such a decision (either way), or to the people, which is to say, the mother.

Not that anyone, anywhere, is actually paying attention to the constitution in our present imperial ruling system of the 545 nobles. Those days are long gone. But this is how it is supposed to work.

|9.26.08 @ 6:41PM|#

TO: All
RE: Judicial 'Activism' Is Just....

....tyranny of another form.

Look at the insidious actions of Reynolds v. Simms (SCOTUS 1964) which overthrew every state constitution in the Union, save Nebraska.

Ever since then, we here in Colorado's rural areas have seen all our resources sucked into Dnever, which NOW holds 17 of the 35 state senate seats.

The Warren court overthrew the balance of power between the rural and metro areas so enjoyed and celebrated by the Great Compromise we hail as the basis of our democratic-republic.

Today, we watch our highways go to hell while Denver builds its vaunted TRex interstate system.

Today we watch the Denver metroplex sign leases for water rights and build businesses and houses on said water, knowing that in due time when those leases expire, they'll turn to the legislature and say, "How can we drive these people out of town?"

California is suffering the same prelude to disaster....according to reports I've picked up from here. I'm sure that all the other states are witnessing similar circumstances.....

Time to re-visit the Warren Courts' egregious decision that destroys our republic at the state-level.

Regards,

Chuck(le)
P.S. Extra Points Question....

How many seats are there in YOUR state senate?

How many are occupied by metro-elected people?

How does this compare with the representation you realize between the federal House of Representatives vis-a-vis the Senate?

Think upon it.....and tremble....

|9.26.08 @ 6:43PM|#

P.P.S. Who decides who sits on a judicial bench in your state?

Is there any correlation on who (1) makes the laws and (2) interprets said laws?

|9.26.08 @ 7:20PM|#

This is one of the stranger debates in American politics right now. The left is wedded to the idea that Bush and most of the right do their best to destroy the Constitution, don't observe the Bill of Rights, etc. After they've insisted on that for five years, it comes out that one clause of the Bill of Rights is essentially meaningless to them, in terms of modern usage. During the arguments before the High Court over Heller, DC's attorneys argued that the 2nd Amendment was no rendered meaningless

|9.26.08 @ 7:26PM|#

...was now rendered meaningless by the transformation of society, which had abolished militia groups of the type that existed in the 1780s, when the Amendment was written. No mention of the fact that the Amendment, having started by referencing the "well-regulated militia" then said that "the right of the People to keep and bear arms shall not be infringed." You'd think "the People" would be separate from the "well-regulated militia" but no, that's not the way we want to interpret it, and never mind how the Founding Fathers intended it. Such logic, applied to the other nine amendments of the Bill of Rights, could wind up with a population free to agree with anything the government said, but prohibited from criticizing it. After all, if an amendment means only what the Supreme Court *says* it means, freedom of Assembly could mean that everyone has to wear a purple shirt on Thursday.

|9.26.08 @ 7:32PM|#

The dissent's untethered-to-caselaw theory in Heller, that the "right" only applies to those recognized by a state as militia, incorrectly assumed the state has authority to supercede federal militia law. When I say "untethered" I mean it contradicts actual militia caselaw.

Scalia did invent law in Heller, because there was no constitutional overlay to account for 220 years of technological development and regulation that we're all accustomed to. This he tried to salvage while retaining the core right, which took a bit of flexibility, for which he is now being criticized.

|9.26.08 @ 8:07PM|#

I tend to agree with my other namesake on Scalia. I was disappointed with his inconsistency on Raich, but I'll take one mistake along with the scores of correct opinions he's written. At least the guy is making an effort at originalism, unlike the port side of the Court.

|9.26.08 @ 9:06PM|#

But, Mr. Root, in Heller, Scalia didn't go wandering about through thickets of words parsing out some hidden meaning no one else could see. Lawrence, while (in my mind) setting out a result that should have been the law to begin with, arrives there only by making up, mostly out of whole new cloth, a new Constitutional protection. That court essentially said "well, it OUGHTA be in there, and so we're puttin' it in."

Scalia's gripe with that approach is that the Constitution is what it is - that, no matter what we can think of that might be equally as fair and as just and as necessary, if the Constitution doesn't set it out, it's not there.

The Constitution is only valuable until we decide it "should" say X, and then we make it so. One poster above said "An important part of THIS democracy is that we recognize that 'majority rule' has weaknesses, and we have a Constitution to help defend *against* the majority opinion." This is true, but only to the extent the Constitution already explicitly supports our view of fairness.

Once we enter into the "it means what we all think of as fair", you're back at the whim of the majority. Think the Nazis could have ever marched in Skokie were that the rule?

In Heller, Scalia stayed true to his philosophy. He overturned no direct precedents, and he did no violence to the words found in the Constitution; in fact, his analysis made it clear he was striving to give those words meaning, in the drafters' sense of the word.

(P.S. In your video - about McCain "pandering" by saying he'd not appoint justices he voted to accept - could it be that he understands what the historical roles of the President and the Senators were? That he believes that, even though he would not have picked them himself, he voted to accept them when the president picked them, because "advice and consent" doesn't give the Senate control over the president's power to choose.)

Jon Roland|9.26.08 @ 10:38PM|#

I recommend against becoming embroiled in a debate about the meaning or application of labels, such as "libertarian" or "judicial activism". As a great English teacher once admonished, "Don't label. Describe." Here are a few descriptions that can be applied to court decisions to which some might object:

1. Sustaining an official act not proved to be constitutional.
2. Overturning an official act not proved to be unconstitutional (by the text or whatever).
3. Basing a finding on sources of law not provided by the main litigants, such as intervenors, amici, or a judge's motion sua sponte.
4. In an effort to reach a narrow finding, failing to take advantage of the opportunity to resolve all or at least the most important issues raised, opening the way for more litigation.
5. Writing dicta that confuse the findings and open the way for more litigation.

I submit (5) applies to both Roe and Heller, but that is a different kind of criticism than that made by Wilkinson.

(1) and (2) need to be examined more closely, because they go to the heart of whether the courts will adhere to the right to a presumption of nonauthority, a fundamental right I find in the Ninth Amendment, and which Justice Scalia seems to see as an inkblot. See http://www.constitution.org/9ll/schol/pnur.htm

Jon Roland|9.26.08 @ 10:42PM|#

The principle involved in cases between an official claim to exercise a power and an individual claim of a right (immunity) against the exercise of such power should not be to always side with the individual, but to side with the individual when there is any doubt about whether the exercise of the power is authorized by an unbroken logical chain of authority leading back to the applicable constitution.

One of my proposals on this point is to always have judicial decisions made by either a jury or a multi-judge panel (randomly selected) and to require unanimity to sustain a claimed official power against a claimed immunity to such exercise. It is a natural extension of the same principle applied in favor of the defendant in criminal cases, to civil cases in which the government is a party or stands behind a private party as its surrogate.

This would apply to the Supreme Court. It should decide against the government unless the justices are unanimous.

|9.28.08 @ 12:06AM|#

This article is unbelievable. The Constitution is NOT vague or unclear on this issue, especially not when you look at it in the historical context. Anyone doubting this should read an anti-gun law review article entitled "The Embarrassing Second Amendment," by Sanford Levinson.

One of the several purposes of the Second Amendment is to protect a basic human right of self-defense. It does not seem very libertarian to me to let leaders, democratically elected or otherwise, flagrantly deny a fundamental human right explicitly guaranteed by the Constitution. It is simply not credible to suggest (as did the totalitarian minority on the court) that the right of the people to keep and bear arms does not refer to their right to own and carry guns. If anything, Justice Scalia didn't go far enough.

|9.28.08 @ 7:21PM|#

TO: Jon Roland
RE: Try NOT....

"One of my proposals on this point is to always have judicial decisions made by either a jury or a multi-judge panel...." -- Jon Roland

...to be total idiot.

I do believe that the Supreme Court of the United States (SCOTUS) is a 'multi-judge panel'.

And I do believe, history will prove me right, they decided back in 1850 that Blacks were not REALLY human beings, vis-a-vis Dredd Scott Decision.

Then again, in 1973, they decided that the unborn were not only not REALLY human beings, but someone could arbitrarily decide to KILL them. At least the Black slaves has SOME protection against THAT....

Regards,

Chuck(le)

|9.28.08 @ 7:26PM|#

P.S. I do believe that selfish American women have killed more American men-since Roe v. Wade-than all athe wars America has fought in since Independence Day, 4 July 1776.

WHO are the REAL 'killers' in America, anyway?

Contextant|9.29.08 @ 11:03PM|#

Some people are missing the point that "Jeffersonian" made: the 2nd Amendment is SPECIFICALLY enumerated in the Bill of Rights, and other rights, aren't. Reading the Constitution strictly based on what is written in it, gay sex, abortion, euthanasia, vice (drugs other than booze, gambling, prostitution), etc, are "not federal matters"; they are "left to the states." It's not strictly a matter of principle which a lot of posters here are arguing, it's a matter of jurisdiction/procedure, which the framers saw as separate issues. (Not that the principles aren't the important things.) The "principle" that the Constitution seems to establish is the right to be left alone as long as you don't harrass/injure others without their consent: vice, abortion before the point of viability, consensual (paid and unpaid) sex acts, taking your OWN life, selling your OWN organs/tissue, earning legal income, passing that income to heirs, etc. These weren't foreseen or aren't listed as liberties, so they are (probably) state, not federal matters (procedurally), but they are certainly consistent with the "don't tread on me without good reason" tone of the US Constitution. (But just because they are state matters doesn't mean "the people" of that state should be able to abridge my right to throw dice, smoke pot, or hire hookers, due to their "community standards" - laws which are rightly struck down, even though these aren't enumerated rights like the 2nd Amendment is.)

Contextant|9.29.08 @ 11:06PM|#

...so on a procedural basis, Scalia is (relatively) consistent, but on an individual rights basis, he isn't.