Saturday, May 16, 2009

Justice Scalia

Law school is out for the summer, so I should be posting more for the next few months. And, as a good place to start, Supreme Court Justice Antonin Scalia visited our school. Hearing him speak has given me a greater understanding of his outlook and world view, but it has not won me over.


Justice Scalia addressed our Constitutional Law class. Like most law schools, ours gets to constitutional rights only after discussing constitutional structures. Scalia approves. He said that a bill of rights offers only what Madison called "parchment" barriers, and that the real protection of liberty is in governmental structures. It is preserving those structures that he sees as the most important protection of our liberty. Scalia sees two governmental structures as most important -- protecting state sovereignty, and maintaining the separation of powers.

State Sovereignty

Scalia sees state sovereignty as an important protection against an overweening federal government and does not see the states themselves as a source of danger. As such, he favors almost any measure to protect the sovereignty of the states. For instance, he believes it was a mistake for the Supreme Court to "impose" the Bill of Rights on the states, although he continues to do so out of respect for precedent. He champions a broad reading of the Eleventh Amendment, which forbids individuals from suing states in federal court. Immunity from suit was an essential attribute of sovereignty when the Constitution was adopted. And he believes the Seventeenth Amendment, which transferred election of Senators from the state legislatures to the public as a huge mistake. So long as the state legislatures elected Senators, the states controlled the Senate and could protect their interests. Since they lost control of the Senate, state sovereignty has been gradually undermined because there is no institution to uphold it. All these are views I had heard before, though usually from less mainstream sources than a Supreme Court Justice.

I do agree with Scalia on the dangers of an overweening federal government and the need to restrict its powers and leave some things to the states. But not with his belief that the states cannot be equally dangerous. The basic underlying assumption, that only the federal government can threaten liberty, and that states are, by definition, non-dangerous, has been tested through extensive experimentation in the field and been proven false. States are just as capable of violating people's rights as the federal government. I do not know enough about the relative merits of electing Senators by the people or by state legislatures to have an opinion neither way. But refusing the extend the Bill of Rights to the states, or forbidding people who the states have wronged from suing both have the effect of elevating states' rights above individual rights. To that I am utterly opposed.

Separation of powers

By separation of powers, Scalia specifically means independence of the executive. This was a point he hammered again and again. European countries do not have the separation of powers; they do not have an independent executive or upper house. All power is concentrated into a single legislative body. The Founders regarded such an arrangement as supremely dangerous. Scalia emphasizes as one of the glories of our system how difficult it is to get anything done, since all laws must pass both houses and be signed by the President. Gridlock and paralysis are good; they are the guarantees of freedom.

When it came time to ask questions, I spoke first and challenged this assumption. There are, after all, other free and democratic countries in the world that concentrate all power into a single legislative body. So obviously our separation of powers must not be so essential to freedom after all. Scalia's answer, as I understood it, was that parliamentary countries are not really free, but only think they are. When we discussed the Justice's visit in class the next day, our professor did not agree that Scalia was going that far. He believed Scalia was merely saying that parliamentary governments were less responsive than ours. And the Justice did, indeed, question the responsiveness of parliamentary government. But obviously if one of the glories of our system is the extreme difficulty in getting anything done, that isn't so responsive either. Another criticism Scalia had of parliamentary systems is that the individual legislator is not associated a single district, as is the case in our system. That means if a senior leader loses in his or her own district, they simply change districts. It is therefore much harder to throw the bums out in such a system than in ours.

I must admit, I do not know much about the relative ease of throwing the bums out in our system versus a parliamentary system. I would say that the great advantage of our system over a parliamentary system is that ours is more difficult to subvert. In a system that concentrates all power in a single legislative body, any aspiring dictator need only subvert that one body. This, too, has been tested through extensive experimentation in the field. It happened in Italy in the 1920's, in Germany in the 1930's, and doubtless in other, less famous cases as well. Any aspiring dictator in the US would have to subvert the Presidency, the Senate, the House, and quite probably the courts as well. And even a vestigial independent executive can put at least some brakes on an aspiring parliamentary dictator. Hindenburg was a restraining influence on Hitler so long as he lived; King Victor Emmanuel exercised a restraining influence on Mussolini as well.

Executive Power

The importance of protecting the executive from an overreaching Congress was one of Scalia's major themes. The one real flash of anger I saw in him was when he talked about he tenure as counsel general for one of the executive agencies, and when he appeared before the appropriate congressional committee and was told that he was their agent. That still rankles with him. Scalia is quite insistent that if Congress could only get its act together, it would win out over the President every time. And, he says, it wasn't the President that the Founding Fathers feared most. Quoting the Federalist Papers, he cited Madison arguing that the executive is the most dangerous branch in a monarchy and the legislature the most dangerous in a republic, so dangerous that it had to be split in two to limit its power.

Once again, I cannot agree. The Federalist Papers are brilliant works of political science, but they are not infallible holy writ. There are excellent reasons for believing that the executive is inherently the most dangerous branch. For one thing, it is an inherently undemocratic branch. Yes, obviously we have an elective chief executive. But unlike Congress, which is a democratic body which engages in public debate and makes it decisions by majority vote, the executive is a basically authoritarian, top-down structure taking its orders from one man -- necessary for effective administration of our government (imagine if every tiny decision had to be voted on!), but nonetheless holding greater potential danger than a democratic body. Closely related, Scalia says that Congress will always win out if it can get its act together. But, as he acknowledged, its democratic, decide by majority vote nature makes that inherently extremely difficulty. The authoritarian nature of the executive, by contrast, makes it much easier for the President to decide on a course of action and unilaterally outmaneuver Congress. And the President has the whole means of coercion at his disposal. What more need be said?

Nonetheless, even assuming for the sake of argument that Madison was right when he wrote the Federalist Papers and the legislature was the most dangerous branch at that time, it does not logically follow that the legislature is the most dangerous branch today. The executive power of government -- the US federal government in particular, but all government as well -- has grown almost incomprehensibly since the 18th Century. To take a basic example, why has Congress never declared war since WWII, even though we have fought several major wars since then? Because the President, given a military force, will use it whether Congress approves or not. Presidents have been fighting minor wars without the approval of Congress from when Jefferson first sent the Marines to the shores of Tripoli. The difference is that up till WWII, the President had only a small military force and therefore could only fight small wars. If he wanted to fight a major war, he had no choice but to go to Congress for permission, or he would not have the army to fight it with. Now the President has a large enough army to send 300,000 troops to Korea or 500,000 troops to Vietnam without having to go to Congress first. And then there is the huge federal bureaucracy and all the administrative agencies. Necessary for any modern government to operate, yes, but what it means is that if the President cannot get his program through Congress, many times he can simply bypass the legislative process and implement it administratively.

In short, I see the power of the executive as the most dangerous and regard any interpretation of the Constitution that fails to take into account the immense growth of executive power since the 18th Century and out of touch with reality. (And I regard any political theory that fails to account for reality as useless at best and dangerous at worst).

Individual Rights

So where do individual rights come into Scalia's view? He does regard them as important. After all, as he explained to his class, we are not a pure democracy in which the majority has unlimited power. Pure democracy is little better than mob rule. We are a liberal democracy with protections for the rights of the minority, which he agrees are important. But he prefers to read individual rights narrowly because a broad reading infringes on majority rule. Speaking specifically about freedom of religion, he said that so long as a law does not specifically target a religious practice, people should be required to obey it, even if it conflicts with their religion. If the majority wishes to grant an exemption for religious objectors, it can do so by legislative enactment. He is confident that, given the importance our society places on respecting people's religion, the majority will generally allow such exemptions.

At least, this is what he told our class. Later, giving a speech at the Convention Center, he made exactly the opposite argument. It is the job of the Supreme Court, he said, to say no to majority government. And he argued that the courts must not invent rights not supported by the text of the Constitution because to do so removes the last barrier to majority rule and allows the general mores of society at the time to run unchecked.

The Dread of Uncertainty

Given these contradictory views, it is mighty hard to argue that the main reason Scalia opposes "judicial activism" is that it infringes on majority rule. Nor, I believe, is it only because he dislikes the results that "activist" judges come up with. Something else is at stake as well.

When Scalia was asked his opinion about other judges, I do not remember what he said about most of them, but he was very clear about Clarence Thomas. They largely see eye to eye on what is ideal, but Thomas is much more willing to overturn precedent; in fact, Scalia gave a little shudder of alarm at Thomas's radicalism in that regard. He said he has two main criteria on whether to overturn precedent that he regards as wrong; whether there has been siginficant reliance on it, and whether the precedent sets clear rules to follow. For instance, he regards applying the Bill of Rights to the states as a mistake, but one that may acceptably be followed. There has been significant reliance on it, and it is not too difficult to follow. He just applies the Bill of Rights to the states exactly the same way he would apply it to the federal government. But Roe v. Wade is a different matter altogether, he said. If forbids an "unreasonable burden" on a woman's right to abortion, and how is he supposed to figure out what that means?*

He also discussed the Religious Freedom Restoration Act (RFRA which, by coincidence, we had just finished writing an assigned brief on) as an example of everything he sees as wrong. He likes the rule that people must obey the law regardless of religious object so long as the law does not specifically target their religion because it is clear cut and easy to follow. But RFRA forbids government from imposing a "substantial burden" on religion unless it is the "least restrictive means" to meet a "compelling governmental interest." What maddeningly fuzzy terms!

And there, I think, is a large part of the answer of what Scalia (and so many other conservatives as well) so dislikes about "activist" judging. It is too vague. It leaves too many ambiguities. It lacks clear, bright lines. Scalia and others like him want a statute to set out those lines in clear and unmistakable terms. The trouble, of course, is that the real world is not like that. The real world is full of fuzziness and ambiguity. And no matter how carefully a legislature may set its bright clear lines, real world situations will inevitably straddle them and force the courts, once again, into the messy world of interpretation.


*Scalia did not discuss his views on abortion as such, other than to say that it should be left the the majority of the state. But he is a traditional Catholic, so I cannot believe he approves.

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