Scaling down Scalia

When I took my seat in McCosh 50 last Friday night to hear Supreme Court Justice Antonin Scalia, I knew that he has become the most prominent symbol of an increasingly conservative Court, but I knew very little about what he actually believes. In fact, I knew virtually nothing about the field of constitutional interpretation at all.

As a result, Scalia's address on James Madison was for me something of a crash course in jurisprudence. Alternating between good humor and serious exposition and speaking over an audible drone of protest from outside the auditorium, Scalia used the history of Madison's interaction with the Constitution to explain why his own approach to Constitutional interpretation — to honor the literal meaning of the text — is the only valid one.

Madison, Scalia began, had initially favored the idea of a national bank and had even proposed during the Constitutional Convention that Congress be given the power to establish one. But when the Bank charter first came up in 1790, Madison opposed it because Congress had in fact not been given such a power, and he felt it dangerous to interpret the Constitution so loosely as to assume one. In fact, he offered two fundamental rules for interpreting the Constitution: first, that powers should not be easily implied, and second, that when the meaning of the Constitution is clear, it must be followed — whatever the consequences. Scalia agreed, and maintained that even reasonableness cannot override constitutionality. He used the example of a little girl who, terrified by the presence of her attacker, wanted permission to testify against him over closed-circuit video from another room. "Reasonable," Scalia explained, "but unfortunately, because of the right to be confronted by one's accuser, clearly not constitutional." He argued that in order to maintain consistency and to protect the original governmental framework, the Constitution must be interpreted on the basis of its original meaning rather than according to what an ever-changing popular opinion deems reasonable.

Scalia contended that if a Constitution is deemed "living" to make it adaptable to modern society — as many who disagree with him believe it should be — and courts are given the power to rewrite it, they will do so just as the majority wants. In short, he believes that his "textualist" interpretation of the Constitution — that is, seeking the original meaning of the text itself — protects against a tyranny of the majority. To his mind, as he explained in answer to a question on abortion, there is no way that five out of nine lawyers in Washington — in other words, a Supreme Court majority — have the right to decide whether abortion is right or wrong. That decision is up to the people, so that rather than turning to the courts, Congress and the states need to pass a law accordingly.

But the problem with this reasoning and with Scalia's entire line of thinking is that it ignores half of the picture. Sure, to allow states to pass discretionary laws on abortion or on other issues simplifies them, but to do so threatens the minority in each of those states, and the Constitution offers as much protection to that minority interest as it does to the principle of majority rule. Any law passed will inherently favor the majority, and thus on some issues — such as abortion, which is not directly addressed in the text of the Constitution and therefore outside of Scalia's definition of constitutionality — the courts should rule on whether or not it is within federal or state power to pass a law at all. This is why the idea of a living Constitution is necessary in the first place.

Although Scalia condemns the idea of a living Constitution as inconsistent with the principles of government, he admits its necessity in the next breath. In response to a question on how textualism can handle new technology — one of his few direct answers of the evening — he cited a 1920s case to explain that sometimes the meaning of the text has to be extrapolated. Is not the very idea of a living Constitution to allow for such extrapolations?

In short, although Scalia makes a very sound and well-reasoned argument for textualism, he glosses over cases where his precise and rather rigid line of reasoning does not work — cases the living Constitution was designed to handle in the first place. Antonin Scalia, then, could perhaps be more tolerant of dissent, but if the mark of a good judge is consistency of principle, there can be no question that he is that. Alex Rawson is a history major from Shaker Heights, OH. He can be reached at ahrawson@princeton.edu.