Scalia
Dissents: Writings of the Supreme Court’s
Wittiest, Most Outspoken Justice
edited and with commentary by Kevin A. Ring.
Regnery Publishing (Washington, D.C.), 338 pp., $27.95 cloth, 2004.
The Opinions of Justice Antonin Scalia: The Caustic
Conservative
edited and with commentary by Paul I. Weizer.
Peter Lang Publishing (New York), 256 pp., $25.95 paper, 2004.
As
he marks his twentieth year on the Supreme Court, Justice
Antonin Scalia has established himself as the foremost defender
of the constitutional orthodoxy of originalism—in particular,
of the “original meaning” species of originalism.
The central principle of original-meaning jurisprudence is
that the various provisions of the Constitution, and of other
laws, are to be interpreted in accordance with the meaning
they bore at the time they were promulgated.
The legitimacy of originalism inheres in the very nature
of law as command. This point is readily recognized on issues
that are not politically contentious. How should we determine,
for example, what it means to be a “natural born Citizen” (one
of the Constitution’s requirements to be eligible to
become President)? Virtually everyone, I daresay, who has
not suffered the disadvantage of a modern law-school miseducation
intuitively grasps that the proper approach is to discern
and apply the sense of that phrase when it was adopted.
But which original “sense” should control? The
subjective intention of the lawgiver, as “original
intent” theory would suggest? Or the objective public
meaning of the text of the law? The “original meaning” school—now
dominant within originalism but not, alas, within the broader
legal culture—endorses this latter approach. As Scalia
has written, “it is simply incompatible with democratic
government, or indeed, even with fair government, to have
the meaning of a law determined by what the lawgiver meant,
rather than by [the objective meaning of] what the lawgiver
promulgated.”
This democratic underpinning of original-meaning interpretation
and the very idea of an original public meaning in turn presuppose
that the Constitution is, by and large, intelligible to the
ordinary citizen. This presupposition is deeply rooted in
the American understanding. For example, Jefferson, as President,
wrote: “The Constitution on which our Union rests,
shall be administered by me according to the safe and honest
meaning contemplated by the plain understanding of the people
of the United States at the time of its adoption.” Joseph
Story, the great Justice and constitutional scholar from
the early 19th century, likewise observed:
Constitutions are not designed for metaphysical or logical
subtleties. . . . They are instruments of a practical nature,
founded on the common business of human life, adapted to
common wants, designed for common use, and fitted for common
understandings. The people make them; the people adopt
them; the people must be supposed to read them, with the
help of common sense.
Fittingly, Scalia, the great defender of original-meaning
jurisprudence, displays a sparkling prose and a logical rigor
that make his opinions especially accessible and appealing
to the intelligent layman. Two recent books—Kevin Ring’s Scalia
Dissents and Paul Weizer’s The Opinions of
Justice Antonin Scalia—do a valuable service in
providing the public a selection of his opinions. In broad
strokes, these books are very similar. Roughly the same length
(in words, not pages), each presents in their entirety or
in substantial excerpts about twenty Scalia opinions, organized
by subject matter. Each includes an introductory essay that
aims to summarize Scalia’s judicial philosophy as well
as limited commentary that frames the opinions.
Ring’s is markedly the better book. Ring presents
a clear and accurate account of Scalia’s originalism.
Weizer’s summary, by contrast, is jumbled with a number
of significant errors. Weizer asserts, for example, that
Scalia’s “textual approach should not be confused
with strict constructionism or originalism.” (Emphasis
added.) But Scalia’s textualist approach is originalist.
Weizer also claims that Scalia “views the originalist
approach as flawed” because it “may well be incompatible
with the concept of stare decisis” (adherence
to precedent). But as Scalia explains in his book A Matter
of Interpretation, the doctrine of stare decisis,
insofar as it requires that some wrong opinions be maintained “in
the interest of stability,” is a pragmatic “compromise
of all philosophies of interpretation.” No interpretive
theory “put into practice in an ongoing system of law” can “remake
the world anew.”
Weizer, a political scientist, also misunderstands the political
ramifications of Scalia’s originalism. He claims that
Scalia’s approach “will, more often than not,
tend to favor the government over the individual.” But
this claim obscures what is really at stake and begs the
question of the proper baseline for comparison. The originalist
approach should yield victories for the “government”—less
tendentiously understood as the citizens’ collective
exercise of their rights of self-governance—precisely
in those cases where the Constitution fails to provide judges
any warrant to override the popular will as expressed through
democratically enacted laws. Granted, advocates of the make-it-up-as-you-go-along
approach that hides behind the misnomer of the “living
Constitution” have willy-nilly discretion to usurp
the democratic processes to deliver undeserved victories
to the “individual.” But it is far from clear
why the non-originalist’s inclination to invent rights
that aren’t in the Constitution—and to ignore
rights that are in it—should be presented as a mark
against Scalia and originalism.
Notwithstanding his evident admiration for Scalia, Weizer
repeats, over and over, the sloppy charge that Scalia “never
shies away from making personal attacks to further
his argument” (emphasis added). But what Weizer mislabels “personal
attacks” are uniformly critiques of arguments, not
of persons. These critiques are often devastating, to be
sure—precisely because their targets are often so feebly
assembled—but they are not ad hominem.
Ring, on the other hand, is unabashed in his celebration
of Scalia. I readily admit to sharing Ring’s bias and
will plead only that the bias is a well-informed one. The
reader who might initially find Ring’s enthusiasm excessive
should defer judgment until he has read the Scalia opinions
that Ring presents.
Although there is substantial overlap in the case selection—eleven
Scalia opinions are in both books—Ring’s set
is more interesting for two reasons. First, Ring focuses
on opinions (not just dissents, as the title would suggest,
but also some concurrences) where Scalia is speaking in his
own voice, rather than in the more institutional voice of
a majority opinion. Second, Ring’s subject-matter organization
is adapted naturally to the cases, whereas Weizer seems intent
on finding a formulaic four cases for each of his “areas
of legal study.”
The starkest illustration of the difference is that Ring
properly highlights, whereas Weizer omits, Scalia’s
brilliant solo dissent in Morrison v. Olson. In
that 1988 case, the Court, in an opinion by Chief Justice
Rehnquist, ruled that the independent-counsel statute did
not violate the Constitution’s separation of powers.
Scalia’s remarkable dissent, at the end of what was
only his second year as a Justice, was arguably the first
clear signal of what makes Scalia both great and distinctive.
The originalist analysis in Scalia’s dissent was made
all the more compelling by his striking prose. Two passages
may illustrate the point. Separation-of-powers issues, Scalia
observed, often “will come before the Court clad, so
to speak, in sheep’s clothing: the potential of the
asserted principle to effect important change in the equilibrium
of power is not immediately evident, and must be discerned
by a careful and perceptive analysis. But this wolf comes
as a wolf.” And addressing Rehnquist’s claim
that the independent counsel remained subject to “some” presidential
control and that “[m]ost important” among these
controls was the Attorney General’s “power to
remove the counsel for ‘good cause,’” Scalia
memorably responded: “This is somewhat like referring
to shackles as an effective means of locomotion . . . . [L]imiting
removal power to ‘good cause’ is an impediment
to, not an effective grant of, Presidential control.”
For too long, the non-lawyer interested in the Supreme Court’s
decisions did not have ready access to them but instead had
to rely on the partial (both in the sense of limited and
in the sense of biased) accounts of journalists. It is not
difficult to imagine that the Court’s protection from
public scrutiny has been one of the many factors that has
produced the sort of decisions that insipidly proclaim as
did the majority opinion in the 1992 decision Planned
Parenthood v. Casey that “At the heart of liberty
is the right to define one’s own concept of existence,
of meaning, of the universe, and of the mystery of human
life”—and that thereby assert that the Court
has a roving mandate to define which particular interests
should be beyond the bounds of American citizens to address
through legislation. Over the last several years, the Internet
has made the Court’s decisions widely available, but
many intelligent citizens still suppose that the Court’s
work is too arcane for their attention. Ring’s book
(and, to a lesser extent, Weizer’s) ought to help develop
a wider readership for Scalia’s opinions and, in the
process, awaken American citizens to their duty to work to
reclaim the Constitution from the unlawful power grabs of
the judiciary.
EdwardWhelan, a former law clerk to Justice Scalia, is
president of the Ethics and Public
Policy Center and is a
regular contributor to National
Review Online and to its
Bench Memos blog on judicial nominations.
