Justice Scalia gave a talk to the Utah State Bar Association this past weekend and delivered his usual overly simplistic version of how constitutional interpretation does and should operate. And just for added offense, he added in a Nazi analogy for good measure.
Speaking to a gathering of the Utah State Bar Association at the Westin Resort in Snowmass Village, the longest-serving justice on the nation’s highest court lamented a trend among federal judges, including his colleagues on the Supreme Court, to read and interpret the U.S. Constitution as a “living document” that changes over time.
Scalia described himself as an “originalist” in his reading of legal texts.
“I believe that texts should be read to mean what they were understood to mean when they were adopted,” he explained…
When judges begin to reinterpret founding documents like the Constitution and make value-laden decisions about individual rights and liberties, Scalia said, they distort the workings of a democratic society. The title of Scalia’s talk, “Mullahs of the West: Judges as Moral Arbiters,” underscores his point that societal decisions about morality and human rights — most of which have no right or wrong answers — should be made in the political arena and not by the courts.
“Who in a democratic society should have the power to determine the government’s view of what natural law is?” the justice asked. “In an open, democratic society, the people can debate these issues.”…
Instead, he said, society at large should set its own moral standards. For example, when women’s suffrage became an issue in the late 1800s and early 1900s, the Supreme Court wasn’t asked to interpret the Constitution. Congress responded to public pressure by giving women the right to vote.
“We understood in 1920 that the Equal Protection Clause meant today what it meant when it was adopted,” he said. “We did what the Constitution required — we adopted the 19th Amendment.”
I think the thing that bothers me the most about this is how he casts those who oppose him as unprincipled jurists who just invent whatever interpretive theory they need in each case to make sure to get the result they want, while casting himself as one who acts purely and objectively on the basis of the easily-determined original meaning of each provision of the constitution. But this is all nonsense, hypocrisy and posturing.
If he really believes that it’s only the original meaning that matters, why did he rule in Raich that the federal government could overrule California’s medical marijuana laws? Surely there wasn’t a single founding father who wrote the interstate commerce clause who could possibly have believed that it could be used to justify federal oversight of actions that are neither interstate nor commerce. Original intent did not matter to him in the least; he got the result he wanted by ignoring originalism.
If he really believes that only democratic processes should determine what we do and what the government is allowed to do, why did he vote to overturn the Affordable Care Act? Or the Voting Rights Act, which passed Congress nearly unanimously when it was reauthorized in 2006? Democracy only matters to him when it matters to him, which is to say when it leads to the result he likes. He is every bit as guilty of constructing inconsistent interpretations to get the outcome he likes as those he accuses of doing the same thing.
The only thing worse than a scold is one who is guilty of the same transgressions about which he is scolding others.