After reading Kevin A. Ring’s Scalia Dissents, I learned that when Supreme Court Justice Antonin Scalia is deciding a case, he… 1) first looks to the text of the U.S. Constitution, and if nothing is expressly mentioned about an issue there, he then… 2) does what the Constitution TELLS him to do… that is, he assumes that all activities not specifically required, encouraged, proscribed, or mentioned in the Constitution fall under the jurisdictions of the several States to regulate as they please. And whatever activities are regulated neither by the federal government (as circumscribed by the Constitution) nor by the States, are left to the people to regulate how-so-ever they see fit, individually or in groups. And contrary to what seems to be the popular belief, there are PLENTY of issues the Constitution does not address.
I also came away from Ring’s book feeling that Scalia considers a Justice’s job is protecting our nation by protecting the Constitution which is protecting our nation. I believe he is entirely sincere when he speaks of that treasured document crafted so wisely by the Founding Fathers as… “our nation’s protection, that fortress which is our Constitution.”
Scalia refuses to read into the Constitution what he WISHES to be there. Surely, liberals and conservatives both can agree that there are some Justices who have done just that– claimed to find something in the Constitution which any reasonable person knows is simply not there. Scalia has said that he does not believe that averting unhappy consequences is a good enough reason for issuing a ruling unsupported by the Constitution. In his minority opinion in the case of Martin v PGA Tour Inc (2001), Scalia opines that the decision of the majority “exercises a benevolent compassion that the law does not place it within our power to impose.”
In the case of Troxel v Granville (2000), Scalia divulges his own personal view that parents should be able to direct the upbringing of their children as seems best to them. Nevertheless, he admits that the Constitution says nothing whatsoever about parental rights. This I respect.
I find it distasteful and disgraceful when Justices bend over backwards into all sorts of noncommonsensical, pretzelly contortions in order to squeeze from a Constitutional paragraph or clause the rendering they have already determined that they want. It is obvious to me that many a Justice, many at time, has STARTED with his or her opinion, and then went looking for any phrase (or blank space) in the nation’s highest law which could be twisted to support the desired opinion.
Scalia may very well do this too. However, it is more difficult to call him out on this, for his views are naturally old-fashioned, putting him more in line with the fairly obvious views of the Founders. Actually, his views seem to overlap pretty well with interpreters of the Constitution for the 150 years or so leading up the mid-20th century. In other words, Scalia thinks like a old-fashioned, white male Christian. I do not say this disparagingly. If Scalia does indeed sometimes start with his opinion first and look to the law for support secondly, there’s often pretty clear phraseology and precedent there to back him up. Obviously, this is a debatable point. Two people can both vigorously agree that the Constitution should be STRICTLY followed– and then go on to interpret the Constitution’s text in two very different ways.
This brings us to a discussion of the way Scalia reads the Constitution…
Scalia believes that the text of the Constitution should be understood as it would have been understood by the average educated person at the time of its drafting and adoption. Some have called this the “Original Meaning” approach. Scalia, author Rivers tells us, will regularly consult American Language dictionaries published during the late 1700s (not England-English dictionaries, notice) in his attempt to grasp how the people of the day would have understood the words and phrases used in the Constitution.
Scalia also employs the wily method of determining the meaning of phrases used in legal documents by looking to see how the same phrases are used elsewhere within the same document. He assumes that the same word or phrase will keep the same meaning throughout the document. I think this is generally a wise policy, something akin to viewing the same object from different points of view in order to get an adequate picture of it.
The Original Meaning approach is subtly distinct from some other, closely related approaches…
For instance, Original Meaning is NOT a “Strict Constructionist” approach. A Strict Constructionist would interpret each word in the Constitution in its narrowest sense. Whereas, an Original Meaning practitioner would try to fathom what the Founders had in mind when they used this or that phrase– words being, as they are, quite slippery and blurry-bordered things. Someone like Scalia, operating under the Original Meaning approach, would also consider, to some degree, the CONTEXT of the words employed. For instance –to give the example Ring gives– Scalia asks himself, What would “Free Speech” have meant to the drafters and ratifiers of the Constitution? Would it have meant, literally, just words uttered from the mouth? Or would it have entailed more than that, such as personal correspondence or works of art?
Original Meaning is also NOT the same as what is known as the “Original INTENT” approach. Under Original Intent, legal scholars look over drafting-debates and personal letters in order to ascertain what the drafters and proponents of the Constitution THOUGHT they were doing. This makes sense at first glance– indeed, I was at first drawn to this approach– until one realizes that –then as now– political “spin” was an important part of the law-making process.
Let us think back to the days when the Constitution was being crafted and ratified. Imagine how difficult it was to get all these educated, opinionated, and probably quite self-assured men to agree to such a far-reaching– and frankly quite scary– document as the Constitution. It could never happen today! At least in the art of political compromise, we are today Lilliputians compared to the Fathers. There’s an art to compromise, and one of the tricks of the trade is to incorporate into the compromise, whatever it is, a certain purposeful VAGUENESS so that the different participants: A) can fool themselves into thinking the document says what they want it to say, and B) they can convince their constituents that the document means this good thing and not, obviously, that bad thing. Plus, in the late 1700s just as now, there was some horse-trading involved in politics. Compromises were made. Not every drafter would have agreed with every provision of the Constitution, and he would have probably tried to spin its meaning.
For these reasons, Scalia states in NEA v Finley (1998) that, for Justices, the legislative history leading up to the passage of a law “has no valid claim upon our attention at all.” Speaking of the personal motivations of politicians for agreeing to a law, he quotes Tenny v Brandhove, that it is… “not consonant with our scheme of government for a court to inquire into the motives of the legislators.”
For a proponent of Original Meaning, when all is said and done, when all the spin has been spun and all the horses traded, we have only the text of the law to go by.