North Western Winds

Contemplating it all from the great Pacific Northwest

Scalia on the "living constitution"

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Blogger Three Bad Fingers has posted a talk given by US justice Anthony Scalia on the subject of how to read a constitution. The talk is very recent (March 14, 2005). Scalia is what is called a “constructionist,” meaning he holds himself to what he thinks the law was intended to mean at the time it was adopted. The contrary view, called a “living constitution” is academically sexy but politically dangerous. I’m very much with Scalia on this. It leads, not to more liberty, but less. It dilutes democracy and the rule of law and replaces them with an unelected oligarchy in the form of the courts. I think that academics are drawn to it not despite this, but because of it. It is they who would benefit most from such an arrangement. They’re the ones who are most likely to have the time, the money, the education and the influence to bend the laws to their favour. What is very much less clear is why anyone else should have anything at all kind to say about it.

If the law needs to be adapted, then let us by all means adapt it, using the mechanisms created for that purpose. Amendments of merit should be able to pass through such a sieve if they are well argued and well thought out. Unless, perhaps, one thinks that those who disagree are, by that very act, below one’s consideration. Self declared ubermensch have always thought this way and our modern legal mechanisms were created to avoid it. This is why we have elections, distribution of powers, and agreed upon processes for changing the law.

This is such an important point – due process- that one has to understand it outside of the merits of any particular case. Unfortunately it is hard to present without example. (I also have to admit that I’m no legal expert, but I’ll present it as best as I understand it.)

Try to consider SSM from both sides. If you support SSM then you ought to take measures to see it enshrined in the law, and see to it that the laws in general are respected and upheld. Anything less risks a Pyrrhic victory. If one uses “living constitution” as a way to get legal protection for one’s desires, any victories achieved are greatly at risk of being undone through the same process. A victory through an amendment to the Charter would be stronger than what we are seeing now, where Parliament is claiming to be led by the Supreme Court, and the court is reading the Charter creatively and inserting words that are not there. Rather than argue the case on its merits and seek the higher bar of an amendment, the Liberal party has chosen to blithely accept the court’s adventurous reading simply because they happen to agree with the conclusion. Or perhaps they simply see votes in it. This rather plainly does not great show as much respect for SSM as it appears to at first glance.

Rather than address concerns about the process, the Liberals have chosen to simply shout “bigot” at anyone who attempts to argue that the best and strongest legal measures are not being pursued. Today questions of process come mostly from those, like myself, who are opposed – but that need not be the case in the future. What happens if voters in the future think differently? Parliament could attempt to reassert its right to lead rather than follow the court, and, not having to go through the process of amendment makes that job easier. Canadians on both sides of the issue deserve better. This is not an issue that should be capriciously tossed about for the political advantage of the legal elite, and this is as true for those arguing for as it is for those against. The simple minded assumption that others point to legal mechanisms only in a bad faith effort to stall the great men as they reach for the stars of the moral firmament is without merit for either. It suggests the pro side cannot make a good enough case for an amendment and it also suggests your cause is not worth the effort of the higher standard. It also suggests those opposed are unworthy of being engaged in honest debate.

Enough of me and my pedestrian opions. Here’s justice Scalia (for the full text see here):

Secondly, and this is the killer argument, I mean, it’s the best debaters argument. They say in politics, you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it, the original meaning of the Constitution, I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way, even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact, must depend upon a fact found by a jury, once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law and order type, I can not do all the mean conservative things I would like to do to this society. You got me.

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the living constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? [sarcasm] The philosophy of John Rawls? That’s easy [sarcasm again]. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under eighteen, who committed their crimes when they were under eighteen, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.”

I have put this question, you know I speak at law schools with some frequency just to make trouble, and I put this question to the faculty all the time, or incite the students to ask their living constitutional professors. “OK professor, you are not an originalist, what is your criterion?” There is none other.

And finally, this is what I will conclude with, although it is not on a happy note, the worse thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. The two missing were Barry Goldwater and Jake Garn, so make it a hundred. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man, somebody who could read a text and give it its fair meaning, had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new constitution that we would want.

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Written by Curt

March 19, 2005 at 9:17 pm

Posted in Uncategorized

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