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Matt Malone, S.J.February 12, 2013

In the minds of many Americans, Justice Antonin Scalia is a fanatic. He wants “to turn back the clock,” we are told, to use his seat on the Supreme Court to impose his narrow-minded morality on the rest of us. Justice Scalia, however, while undoubtedly a social conservative, probably decides cases the same way his colleagues do: by applying a standard of constitutional interpretation as impartially as he can.

For Mr. Scalia still believes in what the Jesuits taught him in civics: The executive branch executes, the legislative branch legislates and the judicial branch interprets. Is that naïve? Perhaps. What is more naïve, however, is the notion that we can turn our courts into a third house of Congress without creating a dangerous imbalance of power. Yet partisans on both sides would like to do just that, to resolve public policy questions through judicial fiat. That is undemocratic, says Mr. Scalia; judges should interpret, not legislate.

But just what method of interpretation should be used? Justice Scalia calls his 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. Note that “original meaning” is different from “original intent,” which Mr. Scalia thinks is not really knowable. In other words, “original meaning” is not an attempt to get inside James Madison’s head. Justice Scalia is simply saying that in a democracy, the standard of constitutional interpretation should center on the voter: What would the voters who voted for a particular constitutional provision have understood it to mean at the time that they voted?

Mr. Scalia refers to his method as “the lesser evil,” especially in comparison with the principal alternative: the “living Constitution.” The “living Constitution” is the idea that the Constitution is an organic entity, that it “evolves,” along with the nation’s moral standards. Since the Constitution is somehow “alive,” it can mean different things to different generations. The problem, according to Justice Scalia, is that if the Constitution means whatever a judge wants it to mean, then we have a kind of judicial tyranny on our hands.

People who oppose Justice Scalia’s approach argue that his method results in decisions that simply conform to his personal prejudices. But if Mr. Scalia really wanted to impose his own views, the more subjective “living Constitution” method would be the way to go. Mr. Scalia’s method, moreover, does not always produce rulings that conform with his personal opinions, and they can just as easily disappoint his supporters. Pro-choicers, for example, get angry when he says that there is no right to abortion in the Constitution; pro-lifers get angry when he says that there is no “right to life” either. If people want to outlaw abortion or the death penalty, or repeal the Second Amendment, which we advocate in this week’s editorial, Mr. Scalia says, “Then do what we do in a democracy: go out and vote for it.” If we do not like the meaning of something, vote to change it, but do not let unelected judges decide the matter for us.

On the whole, that approach strikes me as reasonable. “But,” you might say, “what about civil rights and all those objectively good things that the courts have brought about? Using his method, wouldn’t Mr. Scalia have voted against Brown v. Board of Education, for example?” No, Mr. 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. We probably should not decide the best method of constitutional interpretation according to whether it produces decisions that we personally like. That, after all, is what people are constantly accusing Justice Scalia of doing.

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Roy Van Brunt
11 years ago
The 2nd Amendment, most people seem to forget, sanctioned a private right to bear/own arms that was linked to "a well-regulated militia". Such regulation certainly envisioned training. No one - or at least not many - would object if gun owners were part of such a part of the nation's trained defense force, perhaps its reserves, and therefore eligible to be sent to places where the use of those arms "for the security of a free state" is appropriate. It is fantasy to read, as Nino and others do, that the intent of the founders was to sanction a proliferation of private and unregulated hand-guns - one of which, by the way, they never saw. The weapons of their day were single shot rifles. Allowing them, I suggest, and in the contest of a regulated militia, is a good place to start the road toward gun control. Recreational shooting, though loved by many as a hobby, was never the intent of the amendment.
11 years ago
I just finished Meacham's Thomas Jefferson: The Art of Power and find a Jefferson quotation apropos to your column re Justice Scalia. Thomas Jefferson wrote in a letter to H. Tompkinson (Samuelo Kercheval) July 12, 1816 “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.” “But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl246.php
11 years ago
Fr. Malone: What prompted your comments about Justice Scalia’s interpretation of the Constitution —there is no mystery to anyone interested. See, http://en.wikipedia.org/wiki/Scalia
11 years ago
I guess that is why we have nine justices and other judeges deciding cases at lower levels. Maybe with many judicial minds involved, they might get it close to right the majority of the time.
Shaun Curry
11 years ago
I have read, re-read and re-read again this column and thought hard on it since it was published. I will start by admitting I am not a fan of Justice Scalia and generally believe that rather than being a model of judicial "restraint" or thoughtful jurisprudence, he is instead the most partisan member of the SCOTUS. My belief is not based solely on decisions such as Bush v. Gore or Citizens United with which I fundamentally disagree (and are two cases in which the Court could easily be seen as making political decisions) but also based on his overtly political rhetoric and appearances when he is not speaking from the bench. Father Malone's laudatory review of Justice Scalia's jurisprudence (as opposed, for example, to that of fellow Catholic Justice Anthony Kennedy) has the feel of a "shot across the bow." I will watch with interest the editorial transformation of America under Father Malone and in the meantime will continue to struggle with this column.
Edmond O'Neill
11 years ago
Just one question, how did Scalia who always, he says, votes on the "original meaning" of the Constitution to voting with the overwhelming 5-4 majority who broke with precedent in making corporations and big unions "people" (disclosed or otherwise) too under the 1st Amendment ? Where's the whole "founding fathers" intent thing with this ? Sounds like an activist court to me.
Dan Hannula
11 years ago
"Is that naïve?" Oh, Yeah! ["What would the voters who voted for a particular constitutional provision have understood it to mean at the time that they voted?"] Two quick conundrums: 1. How did the voters understand the 9th Amendment at the time they voted for it? (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.) Tough one eh? 2. Would the voters minds conform to what "Publius" (the Federalist Papers) said the words in the Constitution mean or some other commentator--there were huge disputes over the meaning the various provisions (widely circulated in print) even before the votes were taken in each state convention. And, do you suppose anyone could determine what the majority of those voters thought because I am sure that there was not 100% unanimity--perhaps there wasn't even a majority consensus. If you can't get into the heads of the founders ["original meaning” is not an attempt to get inside James Madison’s head']--how the heck can you get into the heads of the voters? Too bad we didn't have exit polls at each of those conventions eh? "Is that naïve?" You betcha!
Terrance Kelly
10 years 12 months ago
I have read Editor in Chief Malone's ode in praise of Justice Scalia. (Of Many Things, 2/25/13) Malone wrote of Scalia's great respect for the distinct role of each branch of our government; the superiority of Justice Scalia's "original meaning" methodology for interpreting the Constitution; how his method would have served well the Brown v Board of Education plaintiffs, as well as civil rights plaintiffs generally. In truth, Justice Scalia's respect for the constitutional responsibility of Congress and of the President is, shall we say, inconsistent. His remarks from the bench last week, demeaning the constitutional role of Congress in the Voting Rights case, was so off the wall that it left the audience audibly gasping. After referring to legislative efforts to continue protections for minority voters as a “perpetuation of racial entitlements,” Scalia opined that a law governing voting rights is "not the kind of question you can leave to Congress." In truth, Scalia’s "original meaning" methodology doesn't work in the difficult cases, especially the multitude of cases that require the balancing of conflicting constitutional rights (e.g. persons seeking to exercise "gun rights" vs. rights of people to be protected from death by those exercising their “gun rights.”) Scalia, and now, somehow, Editor Malone, reject a broader methodology of constitutional meaning as inferior, a methodology under which judges consider not only the literal original meaning of 18th century legal texts, but also meaning developed from the context in which those words were found, from the history in which those words were worked, from the precedents and purposes of such texts, as well as consideration of the ramifications of various interpretations. On more than one occasion, Judge John Noonan has pointed out that the “original meaning” method can too quickly dissolve into a fundamentalist, literalist formula, akin to inerrant, literal biblical methodology. As an example, Noonan has convincingly written about the development and change, over time, of the Catholic Church’s teaching position on capital punishment. In contrast, Scalia points to St. Paul’s literal acceptance of capital punishment (Scripture) and the Church’s robust participation in capital punishment (Tradition) to dispute that any change has or can take place. As for “original meaning” theory’s impact on civil rights, might I suggest a reading of Justice Ginsburg’s opinion for the Court and Justice Scalia’s dissent in U.S. v. Virginia Military Institute, 518 U.S. 515 (1996). The Fourteenth Amendment to the U.S. Constitution, ratified in1868, resolved that “no state” shall “deny to any persons within its jurisdiction the equal protection of the laws.” Scalia denies its application to women. Scalia is correct. There is no evidence that the 19th century men who exclusively participated in the Fourteenth Amendment’s drafting and ratifying process crafted words that meant to protect women from discrimination. Discrimination against women was an embedded custom and practice in 1868’s civil societies. Therefore, “original meaning” proponents will deny that the Equal Protection Clause applies to women. I can’t think of a worse time for America Magazine and the Jesuits to be going door-to-door selling Scalia’s legal formulas. Terrance R. Kelly Denver, Colorado

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