What's Eating Antonin Scalia? or How To Bastardize The Judiciary

Justice Antonin Scalia has received a lot of press as of late. Most recently it was as a speaker at the annual membership meeting of the ACLU held in Washington, DC. During this debate Scalia arhued against so-called "activist judges," for a strict constructionist understanding of the Constitution, and a pro-government understanding of the law. The CATO Institute has issued an article penned by the editor of their Supreme Court Review, Mark Moller, that first analyzes what it is that motivates Scalia's perverse understanding of the Constitution, judicial independence, and the role of government.

"Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday," the Associated Press reports. Scalia "dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges."

In "What Was Scalia Thinking?" Mark Moller, Cato senior fellow and editor-in-chief of the Cato Supreme Court Review, confronts judicial activism: "No doubt the temptation to contain our disorderly Constitution, by removing the messy, litigious parts, is strong for those, like Scalia, who equate law with rules. But, in the end, that urge is itself lawless. Scalia condemns judges who enact their preferences at the expense of the law as it has been declared. Perhaps it's time to look in the mirror."

In this article there is a paragraph that references a Chicago Law Review article on Scalia that purports to give a fuller understanding of him and his theory:

A complete picture of the mind of Scalia must also take into account his theory of judging, laid out in a 1989 University of Chicago Law Review essay entitled "The Rule of Law as a Law of Rules." In it, Scalia professes his dislike for rulings that give future courts broad discretion. That dislike colored his vote in Raich.

But it strikes me that Scalia's arguments ignores the very text of the US Constitution:

ARTICLE III: Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In this entire section of the Constitution there is not one specification or restriction on how the judges and justices shall act in order to apply their judgement. The founders and framers relied upon the very nature of practicing law in a the common law tradition established by our British forebearers and adherence to the first principles embedded and embodied in the Constitution. Given that reliance upon the Constitution, I make the argument that there are provisions in the Preamble and the Amendments, especially the first ten amendments we have named the Bill of Rights, that govern the conduct of all government officials. Adherence to these principles is not an option, but an obligation every elected and appointed official engages with their oath of office. Therefore, the arguments offered by Scalia and others regarding the strict sense of construction is not only a perversion of the document, but a denial of the broad language and lack of specific manner in which judges shall act. It was the habit of our framers to leave such broad power to no one without justification. Indeed, since the Court is the final voice on the specifics of the Constitution and all law derived from it and applied under it, it is clear that the framers wanted to leave the question of scope and specific application to a completely independent judicial branch without encumbrance. But they built into the process a system of checks and balances on the judicial branch by placing an advise and consent provision in the appointment of judges (in hopes that the legislative judgement would be sound enough to keep the insane or unsound off the bench) and the power to designate the structure of the courts to congress (giving them the power to shake things up shoudl the courts become fascist or dictatorial).

It is very unfortunate that the Religious/Political Right has hijacked the other two branches of government and is now attacking the independence of the only branch capable of keeping them balanced and in check when they exceed their power and authority, as has been the case these last 6 years.