Customer Reviews
Defender of America's Constitutional Order, part 2.
Herein lies the central problem of The Living Constitution: If a written constitution's guarantee's are mutable through judicial interpretation, then they mean nothing at all and offer no enduring protections. The "whole purpose [of a written constitution]," Justice Scalia reminds us, "is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Advocates of The Living Constitution insist that its evolution will always result in greater, not diminished, personal freedom. Setting aside the question of why liberty should always trump authority in their primeval battle, the historical record refutes this assertion. Not only has the Court eviscerated constitutional property and contract rights -- and Scalia suggests, it may do the same to the Second Amendment's right to keep and bear arms -- it has moved on to truncate the Eighth Amendment's Confrontation Clause, holding that in some instances a criminal defendant no longer has the right to confront his accuser, despite the express command of the Constitution to the contrary. Unmoored from the Constitution's text as historically understood, the Court is free to decide, for instance, that modern America has too much political speech and rewrite the Free Speech Clause to provide for congressional regulation, much as the minority leaders of both houses of the Congress now propose.
When a written constitution's guarantees are but wet clay in the hands of willful federal judges, law depends on caprice and we inescapably become a nation of men, not laws. For, as Justice Scalia warns, "When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought mean . . .." This is equally true in constitutional adjudication as in statutory interpretation, except that constitutional decisions are vastly more difficult to reverse. The Constitution ceases to mean what it says, ceases to codify certain prescriptive rights slowly asserted and established against the claims of the crown and its successors, and comes to solely reflect the prejudices of contemporary federal judges, which are unlikely to be reflective of broader social consensus.
Russell Kirk has written, "Not by force of arms are civilizations held together, but by the threads of moral and intellectual belief. In the hands of the Fates are no thunderbolts: only threads and scissors." These threads are necessarily woven from below, through the slow formation of social consensus; when consensus is broad and deep enough that something is thought fundamental to liberty, it is then formally added to the Constitution through Article V. But when judges take it upon themselves to legislate and amend through judicial interpretation outside of Article V, as Professor Glendon points out in her elegant commentary, "democratic elements in our republican experiment atrophy. American men and women not only are deprived of having a say on how we order our lives together, but we lose the skills of self-government." This doubtless fosters the cynicism and alienation from authority which is seen everywhere today.
Early in this century Justice Oliver Wendell Holmes famously accused his brethren of trying to inscribe Herbert Spencer's economic theories into the Constitution. Today's activists are more likely to be influenced by the writings of John Stuart Mill and John Rawls, and take as their program the prohibition of expressions of traditional morality in American law and the institution of wider protections of avant-garde social behavior, in addition to eliminating whatever restraints remain on congressional legislative power and systematically boring holes into the walls separating our tripartite form of government, thereby abetting the growth of the administrative state. The increasing shrillness of debates surrounding issues the federal judiciary has preempted -- abortion and homosexual rights, among many others -- suggests that judicial activists are dangerously wielding the Fates' scissors, rending an already threadbare social fabric in their push for great and faster "social justice." As Justice Scalia points out, "Judges are not [] naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite."
Generally, conservatives today fear that the Constitution will be transmuted into an instrument of oligarchic rule, but Justice Scalia fears the increasing politicization of our fundamental law will lead to rise of a fearful populism: "If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that." Here Scalia is at his weakest. The appointment and confirmation process, like the legislative process, is more easily manipulated by a few highly motivated activists wielding influence well beyond their numbers or reasonableness than by the unwashed masses. Popular control would require political interest and exertion that the very practice of judicial activism militates against. Professor Glendon wisely asks, "Which is more likely: that unruly majorities will have their way? Or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise? Whom should we fear more: an aroused populace, or the vanguard who knows better than the people what the people should want?"
Perhaps judicial restraint is the true Lost Cause of American history. The last five Republican presidents have had little effect on the decisions of the Supreme Court or the culture of the law; indeed, many of the greatest judicial radicals have Republican markings (Warren, Brennen, Blackmun). But Justice Scalia's masterful essay is not in vain. For, as T.S. Eliot has written, "We fight for lost causes because we know that our defeat and dismay may be the preface to our successors' victory, though that victory itself will be temporary; we fight rather to keep something alive than in the expectation that it will triumph." We are fortunate in this decadent legal age that one jurist still contends gamely against the rot.
Loyal to the Language and Letter of the Law...
This book is a must for anyone interested in the debate surrounding statutory interpretation and constitutional law. I began law school and before I knew anything - I mean a TOTALLY blank slate - about the Justices on the Supreme Court I quickly learned that I was "supposed" to hate Justice Scalia because he is a "stupid racist/facist/sexist" etc. Ironically, the more I learn about Scalia the more I understand why he is hated by the liberal left: Scalia doesn't sell out the law to political correctness. I, for one, admire that, but I don't pretend that isn't so because of my own political ideology. However, it is certain that Scalia is a brilliant and learned jurist, and, regardless of your politics, his judicial philosophy is wonderful to study.
Reserve judgment on Scalia and his Textualism until you have read, understand, and have digested the debate and Scalia's position. Be sure to ask yourself throughout the book: is the law certain? If not, ought the law be certain? If so, how ought one interpret statutes to facilitate and/or preserve the most possible certainty in the law? To underestimate Scalia is unfortunate; to dismiss him because he doesn't decide cases "your way," without considering his jurisprudence, is flat out ignorant.
Intelligent discussion beats words without meaning
Adroitly Justice Scalia shows how judicial interpretation follows no known set of principles or constraints. Without a useful set of rules, the judicial branch has usurped the powers delegated to the legislative and executive branches. Instead, the judicial branch continues its common law tradition of making law for the King. Unfortunately, this practice pre-dates democratic government.
The term "interpretation" now includes the raw law making and law setting-aside power that has ripped the fundamental freedom of self governance. Have you ever wondered, when you've read a recent Supreme Court ruling about the latest, newly-unconstitutional law, that the attendant ruling makes no reference to any specific part of the Constitution? Instead, Justices refer to their previously-declared law on that or even another subject. In effect, courts have "interpreted" new law, then used that interpretation or some arbitrary re-interpretation to make whatever decision they think is best. This has led to the bold ignoring of the written law in favor of what judges (and their attendant activists) believe "should" be the law.
In this 50-page main article, Scalia lances a splinter in the eye of the "living Constitution" people. Don't get it, yet? Well, Scalia will be happy to jam a 2x4 piece of lumber in that same eye - his footnoting is right on point. In contrast, the critiques by famous (and liberal) Harvard law professors and other attendants pale in comparison. I suspect that is why the good Justice agreed to write the book in this manner. The Harvard types furnish only silly words-without-meaning to support their claims of a "living Constitution". The contrast is spectacular and enlightening.
