The Scalia Myth

Scalia came out and criticized the 'political' rationale he sees as the reasoning behind the juvenile death penalty decision recently handed down, which is ironic since his doing so is surely part of his political ambition to be named Chief Justice by showing his conservative stripes.

In his criticism, he said:

Not Judicially Efficient

Scalia would have you think that the courts just willie-nillie make decisions. The fact of the matter is that since Marbury (or earlier), the courts have relied on earlier cases to decide later ones. This process fosters judicial efficiency. If an issue not clearly defined by law comes to a court asking, say, whether the word 'chicken' means fryer chicken, or broiler chicken, the court must do a full exploration of the issue,and come to a decision. If then, someone subsequently comes to court and asks the same question, the courts do not have to re-invent the wheel. They can simply say in F. Chicken v. B. Chicken this issue was decided, and here is how it was decided. If somone has a question as to whether 'duck' means fryer duck or broiler duck, again the court does not have to start completely at the beginning. It can look to the F. Chicken v. B. Chicken case and determine the Duck case is similar. Or different. Eventually, there forms a system for determining the issues of Fowl in contracts. Or Beef. Or Widgets.

The benefits of this process is clear: It allows for faster resolution of cases, establishes structure and formats which can be relied upon which help foster consistent resolution of the cases. Otherwise, the court may decide that 'Chicken' mean broiler, then ten years from then decide 'Duck' means fryer, for no reasons at all.

Not realistic in our technologically evolving society.

So, you think that judicial efficiency and consitency are not, by themselves, valid reasons for a 'living' consitutution? Well, there's more problems with a strict interpretation scheme, as Scalia would have us follows. I guess if you see the SCOTUS as a bunch ofliberal zealot over-reachers, the scrict interpretation scheme seems tempting, but it really falls apart in practice.

The fourth amendment is a great example of the danger in strict constitutionalism. The text of the amendment is straight forward:

So, then came are phones. And, coming soon after, the ability to tap phones and listen to conversations from outside of the house. Strictly speaking, this does not involve someone's person, house, papers, of effects, as envisioned by a 1791 person. So, phone tapping is legal and not unconstitutional. The Supreme Court, recognizing through many cases that phone conversations can not, under Scalia's vision, state it is unconstitutional. So, people can be arrested for phone conversations, can have secrets stolen, ect until such time as Congress and each state passes a law outlawing the practice. Since the constitution is silent on phone tapping, and reserves any issue not specifically granted to the United States to each state. So, a congressional law would most likely not be enough, strictly speaking.

So, each state adds a law prohibiting it (or, maybe some don't). And the law reads something about 'tapping wires' or maybe protecting 'conversations', and of course wireless phones and email become mainstream. Now, since it is unlikely the state laws were written in a way to protect either or both wireless phones/email, intercepting those are legal. Until each state passes a new law.

I'm sure that there's a flaw somewhere in there, but I think the point is made, and there are plenty of similar issues? Do you think bail of $500,000 would have been excessive in 1791. What about $5,000? $500? Scalia would have required constitutional amendments to allow mixed-race marriages, and a bevy of other issues that courts decided using cases previously decided, as opposed to going back to 971 and trying to guess what the framers might have thought in terms of modern issues.

One might look at society today and we assume that under a strict interpretation scheme, Congress and the states would have responded to legal conflicts quickly and fairly. However, without a final authority on law, there's no reason to think his would be. Even under the current system, with the threat of a 'unconstitutional' decision, Congress and the states attempt all sorts of judicial activities that are not in the best interest of those who elect them. Can you imagine what would exist if they were the makers and /interpreters/ of law?

Ignores Balancing Act

That leads to the final point. The structure of the 3 branch system is intended to balance against each other. That means at times, the Supreme Court interprets the laws congress makes. If congress doesn't like the court's interpretation, it is free to write new laws, and the people are free to amend the constitution.

Scalia, in many ways, would have the constitution strictly enumerate the rights of people, and require us to amend the constitution to broaden those rights. The constitution on the other hand, speaks specifically that it is not meant to be read as enumerating the only rights of the people, rather it is articulating the most important, if you will.