The cat, the bag and Justice Scalia

Supreme Court Justice Antonin Scalia spoke at the American Enterprise Institute in Washington last Tuesday about the use of foreign law in United States court opinions. Then he took questions from some of the rudest and most obnoxious people ever to preen in front of a C-SPAN camera, and that's saying something.

However, someone did squeeze in a good question between the insults and the heckling, and Justice Scalia answered it with more frankness than we usually hear from federal judges.

The question was about the potential consequences of a return to strict construction of the Constitution. Justice Scalia explained that he is not a strict constructionist, then he explained why, and then he let the cat out of the bag.

He said the Bill of Rights was never intended to apply to the states, and the Supreme Court's interpretation that it does is "the biggest stretch that the Court has made." He said it was still a "controversial proposition" when he was in law school, but the Court has done this for some fifty years now, it's "manageable," "the people have gotten used to it," and he's not going to be the one to tell the people of any state that their state government is not bound by the First Amendment.

Here is a transcript of Justice Scalia's full answer, and if you read all the way to the end, I'll tell you what he didn't tell you:

QUESTIONER: My question is in regard to strict interpretation of the Constitution as it relates to the issue of applying international law before the Supreme Court. After all of these decades of what some would call activism, of the Supreme Court accepting the Constitution as an evolving document, interpreting it in new ways, as a practical matter, would there be consequences with moving entirely to strict construction or is there a need for moderation, or would you say the country would essentially be in better legal hands were the court to move entirely to strict construction. Thank you.

JUSTICE SCALIA: Well, number one, I believe in moderation, and I don't believe in strict construction, I am not a strict constructionist, I'm sorry to tell you that. I believe legal texts should be interpreted neither strictly nor loosely, they should be interpreted reasonably. And the example I often use is that if you really are serious about being a strict constructionist, you would say that the First Amendment would not be offended by Congress' censoring handwritten mail, because the First Amendment only says, you know, it guarantees freedom of speech and of the press, and a handwritten letter is neither speech nor press if you want to be strict about it. But of course the First Amendment has always been understood as protecting freedom of expression, and I think that is a reasonable interpretation of it, and that's the interpretation I apply. Which is why, you know, I was the fifth vote in the flag-burning case, which said this was an expression of contempt, just one way of expressing it, and you can't have a law against an expression of contempt. Now, as to what would be the severe results of going over to a system of abandoning the living Constitution, I mean, you know, I do believe in the doctrine of stare decisis. Which means, for anybody who has any judicial philosophy, you're willing to tolerate what's been around a long time and everybody's gotten used to. You can't rip everything apart and reinvent the wheel every five years. Thus, most of the decisions that have been rendered under an evolutionary construction I would leave in place. Not all of them, but most of them. For example, perhaps the most--the biggest stretch that the Court has made was interpreting the Fourteenth Amendment to apply the Bill of Rights to the states. Nobody ever thought the Bill of Rights applied to the states. It begins "Congress shall make no law." And when I was in law school, it was still a controversial proposition whether the Fourteenth Amendment incorporated the Bill of Rights and spat them out upon the states. But, you know, we've been doing this for fifty years now, it's not a problem, I just take the same rules that I apply to the Bill of Rights against the federal government, and I apply it against the states. It is manageable, the people have gotten used to it, and I'm not about to tell the people of New York state or of any state that their state government is not bound by the First Amendment. Okay? So, stare decisis saves you from those wrenching departures that would make it impossible to go back to a correct interpretation of the Constitution.

What does he mean, exactly? What are "those wrenching departures" that would make it impossible to go back to a correct interpretation of the Constitution?

Justice Scalia won't tell you this, and who can blame him, but the trouble with strict construction has nothing to do with censoring handwritten mail. Strict construction would allow the states to permit racial segregation of schools and public accommodations.

The Constitution has never been amended to ban racial discrimination. The framers of the Fourteenth Amendment, and the state legislatures that ratified it, all made it explicitly clear that the amendment did not touch the ongoing practice of racial segregation in the Northern states. That's why it's impossible to go back to a "correct interpretation" of the Constitution.

No one in public life can say it, but Brown v. Board of Education was a usurpation by the Supreme Court of powers which the Constitution specifically reserved to the states.

That's where strict construction takes you, and if you think Justice Scalia is going there, guess again.

But what about the Supreme Court's "biggest stretch," the fifty-year project of gradually applying the Bill of Rights to the states? Justice Scalia tells less than the whole truth when he says it's "manageable" and "the people have gotten used to it."

For the record, nobody ever asked the people of the United States, or their elected representatives, what they thought about it.

In a series of decisions over the course of the 20th century, the Supreme Court overrode the states' constitutional authority on issues like prayer in public schools, Ten Commandments displays, free speech in classrooms, panhandling, loitering, nude dancing, door-to-door solicitation and flag-burning.

Perhaps "the people" have gotten used to it, but that's not the same as agreeing to it.

Neither have the people agreed to have the Supreme Court override state governments' authority in the regulation of police searches, interrogations, jury trials, prison sentences or the death penalty.

This is not to say the people wouldn't agree. Just that nobody ever asked them.

The Supreme Court's incorporation of the Bill of Rights into the Fourteenth Amendment is also responsible for the Roe v. Wade decision, which took away the states' constitutional power to ban abortion and made the confirmation of federal judges a political firefight for three decades. "Manageable" is not the word I'd choose to describe it.

The core problem with the incorporation doctrine is the subjectiveness that it inevitably introduces into judicial reasoning. It works like this: Some rights are so fundamental to the idea of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

For example, the Supreme Court has never ruled that the states can "make no law," as the First Amendment declares, restricting freedom of speech. Instead, the Court has held that freedom of speech is a fundamental right, and that a fundamental right may only be infringed by a state if there is a compelling reason. A rational reason, the justices have said, isn't good enough.

Some rights are fundamental and some are not. Some reasons are compelling and some are only rational. The justices will decide based on... based on...

There's no way around the fact that this is always and forever a subjective value judgment.

Judges who want to conceal the subjectivity have to cite something to support their value judgment. Like social science studies. Or state-by-state polls. Or foreign law. If they cite the U.S. Constitution they risk tripping over the Tenth Amendment, which says in unambiguous language that the powers not delegated to the U.S. government are reserved to the states.

Justice Scalia can't say it, but the incorporation doctrine is a problem. The solution is a series of constitutional amendments, starting with a ban on race and gender discrimination, to bring the Constitution up to date without relying on the generosity and imagination of federal judges.


Copyright 2006

Editor's Note: Click here or here to get a copy of "How the First Amendment Came to Protect Topless Dancing: A History of the Incorporation of the Bill of Rights Into the Fourteenth Amendment, Why It's a Problem, and How to Fix It," an essay published as an appendix to The 37th Amendment: A Novel by Susan Shelley. Or click here to read it online. You might also be interested in "Why There Is No Constitutional Right to Privacy, and How to Get One" as well as some of the other essays at www.SusanShelley.com.

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