It is a safe bet that the smartest guy ever to graduate from Jesuit-run Xavier High in Manhattan currently sits on the U.S. Supreme Court. Even as a student, his former classmates say, Antonin Scalia was scary-smart, first in the class of 1953. "I was never cool though," he once remarked. That seems plausible, especially when one considers how unpopular he continues to be, especially among the chattering political classes who live within a hundred miles of either ocean. To many liberal political activists, Scalia is a neo-Savanarola: a holier-than thou, unyielding social conservative, seeking to impose his narrow-minded morality on the rest of us. He wants "to turn back the clock," we are told, presumably to those definitely uncool years of stifling religious sensibility, "I like Ike", and Jim Crow politics.
The problem with all that, of course, is that it just isn’t true. Scalia may be a social conservative, but like the rest of his colleagues, he decides cases by applying a standard of constitutional interpretation as impartially as possible. In other words, Scalia still believes in what the Jesuits taught him in civics class: the executive branch executes, the legislative branch legislates and the judicial branch interprets. "Ah," you might say, "that is so naïve." Perhaps, but it just happens to be what the Constitution says. What is more naïve, it seems to me, is the notion that we can turn our courts into a third house of Congress without compromising the essential integrity of our constitutional system. Yet that is just what many people (and not just liberals) would like us to do: to resolve our most pressing social questions through judicial fiat. Liberal or conservative, Scalia says, that is a bad idea. The justices should interpret, not legislate.
Still, the question remains: just what standard of interpretation should they use? Scalia thinks that there is a right way and a wrong way to interpret the Constitution and he's been making the case for 'the right way' for two decades, in almost any forum that would have him. Scalia calls his interpretive method "original meaning." Put simply, the idea is that the Constitution should be interpreted to mean what reasonable people would have understood it to mean at the time that its various bits and pieces were adopted. Scalia doesn’t care much for what the author's intention was; in fact, he thinks that his or her intention is not really knowable. In other words, "original meaning" is not an attempt to get inside James Madison's head. Scalia is simply saying that, in a democracy, the standard of interpretation should be what the people who voted for the Constitution and its amendments understood the texts to mean when they voted.
Originalists like Scalia don't think that their method solves every problem, or that it is even the ideal method. Scalia, in fact, has called it "the lesser evil," especially in comparison to the principal alternative: the "living constitution." The "living Constitution" is the idea that the Constitution is somehow an organic entity, that it "evolves" (never "devolves," mind you) along with the inevitable progress of standards of decency and justice. Because the Constitution is somehow 'alive' its words can mean different things to different generations. In film strips in civics class, this adaptability is frequently hailed as the "genius" of our founders. The problem with the idea, according to Scalia, is that if the Constitution can mean whatever we want it to mean, then we have a kind of judicial tyranny on our hands: Courts can take away rights just as easily as they can create them.
Now I don’t completely buy Scalia's argument. It seems clear, as well, that even if one applied his standard of interpretation consistently, one could still reach different conclusions then he has in a range of cases. Yet he is definitely on to something. It's clear that we need some standard of interpretation and a limited standard is probably in everybody's interest in the long run. Constitutions, after all, are as much about limiting government and preserving the balance of democratic power as they are about enumerating rights. It's significant, for instance, that the Bill of Rights is largely a list of "noes" rather than "yeses" ("Congress shall make no law…", etc.)
People who oppose Scalia's jurisprudence usually argue that his method is a smokescreen; it just results in decisions that conform to his personal prejudices. That just doesn't make sense. If Scalia really wanted to impose his personal views, then the "living Constitution" method would be the better way to go. As a living constitutionalist, he would have full licence to rule according to his preferences. Also, his method doesn't always produce rulings that conform with his personal opinions: While pro-choicers get mad when he says that there is no right to abortion in the Constitution, pro-lifers can get mad when he says that there's no so-called 'right to life' either. He has issued rulings or dissents in favour of broader executive power, but he has also defended the rights of criminals using the same standard of interpretation. As a Catholic, he may or may not agree with the morality of the death penalty, but his rulings are based on the fact that the Constitution, not the Catechism, permits it.
True, Scalia's rulings are usually opposed to social innovation. But if the Constitution is as an instrument that limits power, then the answer is going to be 'no' more often than not. Scalia's not saying through his public opinions that there should not be gay marriage or the death penalty in America (though he might privately think those things). He's simply saying that there isn’t a right to those things in the Constitution. "You want that stuff," he says, "then do what we do in a democracy: go out and vote for it. Persuade your fellow citizens that it's a good idea. Organize. Don’t allow unelected judges with lifetime appointments to decide these questions for you, especially questions that are as important as these." On the whole, that strikes me as a reasonable view.
"Ah," you might say, "but what about civil rights and all those undoubtedly good things that the court has brought about? Using his method, wouldn’t Scalia have voted against Brown v. Board of Education, for example?" No, Scalia has said. If the Court had applied his method, Brown would never have been necessary because "separate but equal" would never have been declared constitutional in the first place. But all that is beside the point, it seems to me. We probably shouldn’t decide the best method of constitutional interpretation based on whether it produces decisions that we personally like. After all, that is what we are constantly accusing Scalia of doing.