Scalia's Not Half-Bad—More Than You Can Say for Most Justices

Supreme Court Justice Antonin Scalia has been receiving a lot of criticism around here lately, much of it deserved and some of it from me. I did not like the way he bent over backward in D.C. v. Heller to reassure gun control supporters that existing federal restrictions on firearms are not in danger. His position that the Second Amendment covers only weapons "in common use...for lawful purposes," as opposed to the "unusual and dangerous weapons" that can be banned without violating the Constitutution, is a circular argument that seems designed to uphold the status quo. Neither the federal machine gun ban nor any other form of national gun control was before the Court, so Scalia should have left such issues for another day.

By the same token, however, I don't think it's fair to criticize Scalia, as Radley Balko does, for failing to describe the exact parameters of the right to keep and bear arms (whether it extends beyond self-defense in the home, for example) or for refraining from deciding whether states and cities are bound to respect it by the 14th Amendment. Those questions were not before the Court either. The most important thing Scalia did in Heller (and did quite well, I thought) was to settle the question of whether the Second Amendment protects an individual right to arms and to lay out the reasons for concluding that it does.  

More generally, some of the stronger libertarian attacks on Scalia obscure the fact that, from both an originalist and an anti-statist perspective, he is substantially better than the average Supreme Court justice. Although he does not consistently apply his professed principles, he does stand up for a more eclectic mix of individual rights than any other justice, with the possible exception of Clarence Thomas. For the average self-styled progressive, the fact that Scalia upholds property rights in cases involving eminent domain and regulatory takings fits the profile of a reactionary Republican, confirmed by his position on the Second Amendment. But Scalia's wide-ranging defenses of free speech, in cases involving issues such as online "indecency," commercial speechcampaign finance restrictions, and flag burning (which the "liberal" Justice John Paul Stevens wanted to exclude from the protection of the First Amendment), does not jibe with that stereotype.

Neither do Scalia's defenses of the Fourth Amendment. Although he has joined the majority in whittling away at the guarantee against unreasonable searches and seizures, especially in the name of the war on drugs, he also has occasionally resisted that trend, both in the majority and in the minority.

Radley writes that Scalia "has a history of prioritizing his law-and-order instincts over his allegiance to limited government principles and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzales v. Raich." Joining the majority in Raich is one of the worst choices Scalia has ever made, hammering what may prove to be the final nail into the coffin of the "federalism revolution" he ostensibly supported. But Scalia's law-and-order instincts have not prevented him from standing up for the rights of defendants, despite his reputation as pro-government. In a pair of recent cases, for example, Scalia joined Thomas in narrowly construing the federal definition of money laundering, thereby overturning two convictions. Together with Thomas, he has led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment. And in Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an "enemy combatant," Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go. 

In short, Scalia is in many ways more liberal (in the classical sense) than the allegedly liberal members of the Court, and we should not lose sight of that fact when we criticize him for his inconsistencies. On balance, I'd much rather see more justices like Scalia than more justices like Stevens.

Mark Moller tries to figure out what Scalia was thinking when he took the wrong side in Raich. Cathy Young reviews Scalia's deviations from judicial restraint. Damon Root asks what's so great about judicial restraint anyway.

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  • Elemenope||

    Well, thing is, the court is not normally shy spewing copious amounts of obit. dicta, so the argument that they simply were trying to be narrow is fairly silly; if Scalia wanted to strike down the ban and still give a clue about Incorporation of the 2nd, he could have written a concurrence (and I'm still shocked that Clarence "What's stare decisis?" Thomas didn't write one).

    If they wanted to be politic about it, they could have just given the authorship of the opinion of the court to Kennedy; it would have held probably the same, only have been filled with much less douche and/or pointless sparring with Stevens.

  • Fluffy||

    Be careful about endorsing Scalia's "originalism". "Originalism" has some cred among libetarians, because we hear it defined and say to ourselves, "Wow, an originalist would not interpret the interstate commerce clause as broadly as current law does, and a more narrow reading would be awesome!" But that's not the only implication of originalism.

    "Originalist" theory has morphed into a theory that holds that one can read the Bill of Rights, and then look at government practices that were contemporaneous to the ratification of the Bill of Rights, and argue that the Framers' "original intent" could not have been to ban those practices. There's also a variant of it that argues that the 14th Amendment can't ban anything that its ratifiers and their immediate successors didn't think it banned. To a true "originalist", if the Framers would have banned pornography, or certain types of anti-government speech, that shows that their "original intent" with the First Amendment was not to protect those activities.

    We have to rely on the plain text of the Constitution and not the ephemeral political landscape that surrounded it at any moment in time. The plain text of the First Amendment protects speech the Founders might not have protected; the plain text of the 14th Amendment prohibits government activities that the Reconstruction Congress might not have thought it prohibited. They wrote the words and the words are the words.

  • Elemenope||

    Fluffy, plain-text interpretations can be pretty scary too. I woudl say no one judicial "philosophy" has the market cornered on propriety. I hesitate to endorse a results-based approach, but it seems to me that the only "Libertarian" judicial philosophy would be one that starts with the strong presumption for liberty (in all things) and then tracks back against harms, state interests, etc. with a difficult to surmount evidentiary standard to overcome the presumption.

  • ||

    Fluffy, I am mostly with you, but with reservations. I'd like to see our jurists rely on the black letter of the law first, - "original meaning" - before looking behind it to try to discover "orginal intent." But this...

    They wrote the words and the words are the words. - Fluffy



    ... does not get to the problem of judges who ignore what the words meant, either in general parlance or as legal terms of art at the time they were added to the Constitution. Those who adhere to the "living Constitution" ideology are often quite happy to read some terms in our fundamental law that were set down in the 18th or 19th century by applying meanings that became attached to those words well after the clause or amendment was written.

    Kevin

  • ||

    "dangerous weapons", I love that, are there any "non-dangerious weapons"?

  • ||

    See, I think "the Second Amendment covers only weapons "in common use...for lawful purposes," together with the militia clause just begs for a Second Amendment that protects the rights of American citizens to obtain and own the standard issue infantry weapons of the day.

    Not that SCOTUS will actually grow a pair and do that, of course. I just think its a fair, even strong, reading, of the current jurisprudence.

  • ||

    Fluffy said:

    "Originalist" theory has morphed into a theory that holds that one can read the Bill of Rights, and then look at government practices that were contemporaneous to the ratification of the Bill of Rights, and argue that the Framers' "original intent" could not have been to ban those practices.


    Who's out there making "original intent" arguments anymore anyhow? I thought that was pretty widely shitcanned in the mid-90's in favor of "original meaning"? The Heller decision is so strongly rooted in "original meaning"/textualism that it's practically a lesson in English.

  • Ravac||

    I don't think it's fair to criticize Scalia, as Radley Balko does, ...

    I think you guys ought to take this to THUNDERDOME!

  • DannyK||

    I can't believe you take "originalism" seriously any more. Scalia took a reasonably clearly worded text, the Second Amendment, and unpacked all kinds of remarkable things in there, including a right to have handguns to defend your house against criminals. You'd need a Geiger counter and a microscope to find those issues in the Bill of Rights.

    After Heller , it should be clear to everyone that Scalia's originalism is like a magician's top hat -- he can pull anything out of it he wants.

  • Other Matt||

    does not get to the problem of judges who ignore what the words meant, either in general parlance or as legal terms of art at the time they were added to the Constitution

    Good example. At the time of writing the constitution, describing someone as "gay" has a completely different meaning than now.

  • Neu Mejican||

    does not get to the problem of judges who ignore what the words meant

    The word judge means?

    Pretty sure its meaning implies/includes "one given authority to interpret the meaning of laws."

    It is in cases where the meaning is controversial that the SCOTUS will be interpreting what the words mean. The silliness that there is a "plain" meaning and that it is the judge's job to discover it results in much intellectual time wasting.

    The job of the SCOTUS is not to discover the meaning of the text, but to refine that text by providing additional text that will help in the interpretation of the rule by the wider society as it is applied. The process refines the meaning over time. There is no plain meaning to be discovered.

    People 'round here often talk of those who are "economically illiterate."

    A far greater number of people are semantically illiterate.

    [/snark]

  • ||

    More generally, some of the stronger libertarian attacks on Scalia obscure the fact that, from both an originalist and an anti-statist perspective, he is substantially better than the average Supreme Court justice.

    Whoa whoa whoa. Are we talking about the Scalia that said "Don't worry about the police breaking down your front door without a warrant and shooting you dead. Because the police are professionals". THAT Anthony Scalia???

  • Fluffy||

    It is in cases where the meaning is controversial that the SCOTUS will be interpreting what the words mean. The silliness that there is a "plain" meaning and that it is the judge's job to discover it results in much intellectual time wasting.

    This is just false.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.



    There does not seem to be any room for controversy, interpretation or dispute that one of the clauses of this Amendment is "Congress shall make no law...abridging the freedom of speech, or of the press." A plain text reading of this Amendment, a literal reading, is quite easy.

    The only controversy arises when people who don't like the obvious plain text meaning of the Amendment say, "Wah! But we want to ban 'obscene' speech! Wah! There has to be a way to do that! Buh-buh-buh...compelling state interest! Buh-buh-buh...clear and present danger! Buh-buh-buh...commercial speech!"

  • Stormy Dragon||

    >he is substantially better than the average
    >Supreme Court justice.

    In a tallest midget kinda way.

  • Chris||

    If I recall correctly, there was a print edition cover article a little while back which discussed, in part, whether people have a right to own machine guns, nuclear missiles, etc. Does anyone have a link to that or remember the title or anything?

  • ||

    Fluffy,
    I'd like to go along with you, but I carve out a libel/slander exception to the first amendment. Is it a crime to say "Barrack Obama molested me as a child" if there is no truth in it? Or is even that protected by the first amendment.

  • Neu Mejican||

    Fluffy,

    This is just false.

    If the "this" in your sentence is self-referential, perhaps. Or if it refers to the statements that follow.

    ;^)

    There does not seem to be any room for controversy

    I would contend that the polysemous nature of "abridging" provides room for multiple interpretations.

    Does it mean you can't shorten even while retaining the basic right?

    Or does it mean that you can't remove it?

  • Elemenope||

    Fluffy,
    I'd like to go along with you, but I carve out a libel/slander exception to the first amendment. Is it a crime to say "Barrack Obama molested me as a child" if there is no truth in it? Or is even that protected by the first amendment.


    Also a fraud exception. Otherwise contracts and capitalism go down the tubes.

  • Neu Mejican||

    Is a law "abridging" only when it curtails?

    Or is any limitation an "abridging?"

    What is the plain text meaning of "no law abridging?"

    Who counts as "the press?"
    Do bloggers count?

    Does written language count as speech?
    What about non-verbal expression?

  • Neu Mejican||

    Repeat after me folks...

    There is no such thing as "obvious plain text meaning"

  • folks||

    There is no such thing as "obvious plain text meaning"

  • Neu Mejican||

    "Freedom of the press"

    Does this mean that the press can do anything it wants?

    Does this exempt the press from requirements to follow other laws.

    Can the press defy court orders?

    Is the press free to ignore law enforcement officers?

    Can the press commit treason without fear of reprisal?

    Can the press use force to make you support its activities?

  • Neu Mejican||

    good job folks.

    Expect your re-reinforcement on a random schedule.

  • ||

    Now you're just being silly Neu Mejican.

  • Neu Mejican||

    Warren,

    The distance from snarky to silly is short, of course.

    But nothing is as silly as claims that the meaning of any text is black and white.

    Some of the questions I raise, have been, of course, the source of controversy and have been subject to court interpretation.

    Ask Judith Miller about the extent of "freedom of the press."

    Is it clear that her treatment violated the first amendment?

  • Ska||

    f I recall correctly, there was a print edition cover article a little while back which discussed, in part, whether people have a right to own machine guns, nuclear missiles, etc.

    August/Sept 07 by the cartoonist dude.

  • JB||

    Jeez. When will people study history and learn that the Bill of Rights was not meant as a list of rights that government gave the people?

    It was an explicit reminder that the Federal government should not encroach on these rights. It does NOT mean that people have no other rights. People have a whole litany of inalienable rights that the government cannot take away.

  • ||

    Warren said:

    I'd like to go along with you, but I carve out a libel/slander exception to the first amendment. Is it a crime to say "Barrack Obama molested me as a child" if there is no truth in it? Or is even that protected by the first amendment.


    You only need to carve that out post-incorporation. Congress itself has no need for libel/slander laws.

    Fraud on the other hand is more nebulous, since regulating Commerce can easily entail anti-fraud legislation.

    But I side with Neu. Enumerated rights were not absolutes. There's a police power assumption that lives side by side with the Constitution. The Constitution co-exists with, and does not eliminate, the police power.

    This did of course lead to issues in the 20th century where the commonly held notion of the police power was greatly expanded almost to the point of swallowing whole parts of the Constitution. While regrettable, this is not grounds for saying the police power must thus be ignored altogether.

  • ||

    Here's where this all gets dicey. Although interpreting the meaning of the Constitution (and of legislation, other opinions, treaties, etc.) is necessary, especially given that any given fact pattern may reduce the applicability of the original law, if judges can use tortuous logic to arrive at really any conclusion, then the Constitution, legislation, and the whole doctrine of stare decisis go out the window.

    Speech is a good example. We look back at what common law restrictions there were on speech at the time the Constitution was written. So perjury, defamation, conspiracy (which requires conduct on top of speech, anyway), and incitement to immediate violence remain outside of speech protection. Still, the meaning of the federal and state constitutions when it comes to protecting speech rights is fairly clear--except for a few well-established exceptions, the government shouldn't be prohibiting, chilling, or otherwise limiting speech. Even nasty speech that burnses our earses.

    I think one big problem is looking to the Constitution as a source for our rights. It certainly was never intended to be that, and opponents to the addition of the Bill of Rights warned that we might end up with that problem. Of course, courts have also interpreted away most of the limits placed on government action, which is arguably the most dangerous instance of judicial power run amok. We almost need an anti-government to check the three branches.

    Or. . .The Censor! Ah, ha, ha, ha, ha, ha!

  • Neu Mejican||

    We almost need an anti-government to check the three branches.

    Or a fourth branch...that held the governments actions up to scrutiny and made that information available to the people. Some sort of institution or process for disseminating information that the government would be prohibited from "abridging" through law...

    Where could we find such a thing.

    ;^)

    I do think the point that the Bill of Rights is not the source of our rights, but an incomplete description of them is commonly missed, but I don't see anyone on this board missing that important point.

    MP,
    I am not sure if your elaboration of
    But I side with Neu.

    to mean

    Enumerated rights were not absolutes.

    makes sense from a plain text interpretation of what I wrote.

    I was not, actually, putting forth an opinion on the meaning of the enumerated rights. I was criticizing a naive plain text approach to determining what that meaning is.

  • ||

    Neu said:

    I was not, actually, putting forth an opinion on the meaning of the enumerated rights. I was criticizing a naive plain text approach to determining what that meaning is.


    Apologies. I automatically associate textualism with absolutism. Criticize one, and I assume you're criticizing the other.

  • ||

    I agree that Justice Scalia is not half bad. He is something like 90 percent bad--a result-oriented scold of the worst kind.

    Recall his fulmination in Lawrence v. Texas that the Supreme Court was "taking sides in the culture war". I submit that Scalia's consternation was not that the Court was taking sides--it was delivering a body blow (pun intended) to the Antonin Scalia/Eric Rudolph side.

  • ||

    The distance from snarky to silly is short, of course.

    What's the distance from discussing the issues and being a pedantic asshole?

  • Neu Mejican||

    MP,

    No apology needed, and I agree that there is a high correlation between textualist interpretation and absolutist thinking...but they are not logically linked, imho.

    I can conceptualize the idea of SCOTUS using the process of refinement to end up with an absolute right with no exceptions, once that right has been well defined enough (through the refinement process) that it can be easily recognized and applied.

    Off the cuff that might look something like "the 1st means that no law can criminalize the publication of information. So, any and all disputes over published information are to be handled exclusively by the civil courts."

    With all the important terms careful defined, of course. The problem for the absolutist interpretation comes from the fact that this absolutist interpretation will be subject to future re-interpretation and refinement. In that sense it will be absolute, but potentially fleeting.

    Or something.

  • Neu Mejican||

    JsubD,

    What's the distance from discussing the issues and being a pedantic asshole?

    As a pedantic asshole, I would say that discussing the issue is an action and being a pedantic asshole is a state of being, so the concepts are either orthogonal, or overlapping depending upon your perspective.

    With me you get a pedantic asshole discussing the issues.

  • rich||

    bravo, neu, bravo

  • ||

    This is bull.
    What's more important-the First Amendment or the Second?
    Scalia happens to care about one element of freedom, neglecting all the rest.
    Ruth Bader Ginsburg cares about almost every element of freedom, neglecting only a modicum.

    Ginsburg should be loved much more by libertarians that Antonin Scalia.

    You, sir, are a mockery to classical liberals and libertarians everywhere.

  • Paul||

    Pretty sure its meaning implies/includes "one given authority to interpret the meaning of laws."

    *scratching chin*

    Or maybe, the meaning of 'judge' is to interpret a particular case as it applies to the plain language of the law.

    I won't speak to any particular law or amendment at this time, but sometimes...*sometimes* the text is plain enough.

    When we start judging the plain(er) text of a law by weighing it against a 'compelling governmental interest', that's pure wild-cattin' deviation going on, plain and simple. In fact, it's judicial deviation on its face. A 'compelling governmental interest' to limit the plain text of a law or civil right is, as Scalia pointed out, to have no civil right at all.

    Some sort of institution or process for disseminating information that the government would be prohibited from "abridging" through law...

    Where could we find such a thing.


    You won't, especially within 60 days before an election due to law that Congress made. At least it can't mention any candidates by name.

    ;)

  • Neu Mejican||

    Paul,

    I agree that the meaning of "judge" as a verb can include the one you give...I was defining the noun.

    As for "plain enough" text...

    There certainly is a scale of ambiguity in language and sometimes the vast majority of people will broadly agree on the meaning of a particular piece of text. That doesn't mean there is an obvious plain meaning to the text. The meaning still comes from an interaction between the text and the audience in a context. It doesn't live in the text, if you will, but in the interaction.

    Because of this, to me, it doesn't seem that the general agreement holds as you require more specific meaning to, as you say, interpret a particular case as it applies to the meaning of that text. When SCOTUS gets involved, they are adding text to the interpretive process to help specify the meaning, and are given authority to exclude/restrict the range of options that can be used the next time the law needs to be applied to a specific case.

    As for using "a compelling government interest" as part of the interpretive process...

    I mostly agree with you. Partly because a compelling interest is just as fantastical a beast as a plain text meaning, and just as context bound.

    You won't, especially within 60 days before an election due to law that Congress made. At least it can't mention any candidates by name.

    That made me chuckle, but the pedant in me is forced to point out that you are conflating a restriction of "speech" with a restriction of "the press." The press can mention any candidate by name that they want at any time during the election cycle as often as they like in regards to any topic they choose.

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