SCALIA: A COURT OF ONE

10/1/14:

Law professor Justin Driver of the University of Chicago has recently reviewed Bruce Allen Murphy's new bio about Justice Antonin Scalia.  I am not gonna go racing out to buy that book.  As much as I hate Scalia, I don't trust anyone else who also hates him!  According to Driver, Murphy seems to squander most objectivity.

According to Driver, Scalia supposedly embraces a literal reading of written statutory text for interpretation (instead of its "legislative history").  However, it seems to me that Scalia does not embrace a literal reading of the text of the Constitution in most instances, apparently preferring, instead (per Murphy), to divine the "public" opinion held about the Constitution by those now long dead, probably in the early 1800's before the widely-held approval of Negro slavery was found to be absurdly wrong!  For years I mistakenly thought Scalia was channeling the ghosts of James Madison, et als, to divine the "original intent" of said "Framers," but Driver indicates that Scalia's version of "originalism" is even more speculative!  Silly me!  I think Scalia really pines for the early opinions of the Supreme Court, when the "luminaries" thereon were rather stingy with personal liberties and issued such wonderfully statist rulings as the 1857 DRED SCOTT decision.

Scalia, apparently a "hyper-democrat," also apparently would give great weight (as many now do) to validating whatever a dominant majority would inveigle to get passed.  That  validates my belief that the purest form of "democracy" is a lynch mob, since everyone in attendance agrees on the outcome except for the victim!

It does not bother me that Scalia disavows "legislative history."  I think that has been mostly fabricated &/or irrelevant bullshit for a long time.  Elected reps vote a given way for a variety of reasons, and even where some committee decides to approve some sort of appendix that purports to declare the rationale for adopting some law, I think the written word must speak for itself.  If it is too inscrutable to be plainly interpreted, then the courts ought to strike it down.  If it mistakenly says the opposite of what was intended, then a legislature is obliged to change it!  The courts were not created to "wet-nurse" the elected legislators by fixing their boo-boos!

Scalia and I see the Constitution differently and have done so for a very long time.  He mistakenly would validate almost anything an elected majority passes, and he seems to find all sorts of implicit government powers despite the rather unambiguous  language of the Tenth Amendment to the contrary.  Concurrently, he refuses to recognize almost any personal "rights" not spelled out in the Constitution, despite the clear language of the Ninth Amendment attempting to preserve same.  The Ninth Amendment was strongly cited by Harry Blackmun in ROE v. WADE.  What galls me is that no one who interviews Scalia has challenged him on these interpretations nor ever demanded of him an explanation of how he gets past the plain language of both the Ninth and Tenth Amendments!

I was fascinated to learn while watching some of the PBS series about the Roosevelts last week that "TR" was one of the first Presidents to assert expansive executive power beyond whatever Congress or the courts might like!  I firmly believe that the former revolutionaries who framed or approved the Constitution would NOT (based on the history of the times and their dealings with the British Empire) have implicitly or expansively empowered the supreme leader of our central government!  Time and again, most Framers were on record as being vehemently against regarding the President as some sort of king.  I guess that makes me something of an "originalist," too!  

I firmly believe that the Framers and those who approved the Constitution saw the absurdity of trying to enumerate all the personal liberties desired thus implying a refutation of those not mentioned which, I understand, was the basis of Alexander Hamiltion's opposition to adoption of a "bill of rights."  So, the 9th Amendment was produced in an effort to preserve those "rights" not enumerated, which Scalia and others of his ilk seem so eager to ignore or dismiss.

Barack Obama seems to have that same problem, as did so many of his predecessors.  Too many today, including some Supreme Court justices, see the Constitution as a recitation of discrete rights instead of a recitation of limited governmental powers.