Posted: January 9, 2007
A review of Antonin Scalia's Jurisprudence: Text and Tradition, by Ralph A. Rossum
tudents of the Supreme Court's past two decades have come to appreciate the special thrill of an opinion by Associate Justice Antonin Scalia. Only a handful of justices in the Court's history have so enlivened the pages of the U.S. Reports. His judicial charisma has been all the more thrilling for being so unexpected: after all, he displays it while hewing to what many take to be the stodgiest of interpretive postures, originalism, which holds that, in interpreting a legal text, the judge is duty-bound to read it in light of the meaning it was understood to have at the time of its adoption. But like Ronald Reagan, the president who appointed him, Justice Scalia has upended the old rules and made an ostensibly dynamic liberalism seem stodgy, lifeless, and orthodox-and an ostensibly staid conservatism appear vivid, dynamic, and smart.
What is the secret of his success? To be sure, as Ralph Rossum showcases throughout his methodical overview and assessment of the justice's work, it helps to have a ready wit, and talent for turning a phrase. But Scalia's real genius stems from the way he wields both in service of two key strands of contemporary constitutional conservatism. The first unmasks the fatuities and pieties of modern liberalism-what Scalia has dubbed "the smug assurances of [our] age." And the second makes the affirmative case for the constitutional understandings they displaced as best suited to the preservation of the individual freedoms and democratic commitments of all Americans.
When turned to the first task, Justice Scalia is gleefully impious and subversive, a Jefferson Smith, Socratic gadfly, and Bluto Blutarsky all rolled into one. Effective subversion, of course, is typically more artful than it seems. Scalia's special knack as a subversive is for wielding the classic law school hypothetical to draw liberalism's unstated, and typically unnoticed, assumptions to the surface, exposing its self-satisfied professions of being uniquely committed to the "neutral," "fair-minded" application of "principle." His opinions demonstrate again and again that liberal banalities have come to be accepted as neutral truths mainly because those intoning them can't follow the logic of their own supposed principles. When confronted with the ringing declaration that "[e]ven as a speaker, it is the obligation of the government to remain neutral between competing ideas," Scalia boldly explains that no one really believes this, and demonstrates it by simply parading examples that liberals would never think to consider. After all, if the proposition really were true, it would lead "to the strange conclusion that it is permissible for the government to prohibit racial discrimination, but not to criticize racial bias; to criminalize polygamy, but not to praise the monogamous family; to make war on Hitler's Germany, but not to denounce Nazism." When, during his confirmation hearing, a senator concerned for the future of abortion rights declared that it is a judge's high duty to recuse himself in cases in which he has a "deeply held personal position" on "the morality of the issue," Scalia asked if the late 19th-century justices who objected to polygamy on moral and religious grounds had transgressed their duty when they decided a famous case on the issue. In a dissenting opinion for Edwards v. Aguillard(1987) he addressed whether the separation of church and state makes it unconstitutional for legislatures to pass laws motivated by a religious purpose, writing: "We would surely not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved." Whatever they think of originalism, many law professors have felt the full force of these counter-examples: as Rossum shows, Scalia's opinions are more likely to be reprinted in constitutional law casebooks than those of any of the Court's other current justices.
It's one thing to make short work of procrustean banalities; it's another to propose a doctrine to take their place. Rossum sums up the justice's alternative as "text and tradition," or a commitment to "apply[ing] the textual language of the Constitution or statute when it is clear and to apply the specific legal tradition flowing from that text (i.e., what it meant to the society that adopted it) when it is not." Only by applying the law as written, Scalia argues, will the judge assume his properly limited role in our liberal constitutional democracy.
Rossum, who teaches constitutional law at Claremont McKenna College, is in full sympathy with this interpretive method, and takes a critical perspective not by questioning it but by measuring Scalia's performance by his own yardstick. He concludes that Scalia has been "remarkably consistent" in applying his approach to actual cases over the years, but that in a few doctrinal areas he has strayed. For example, although Scalia is convinced that neither text nor tradition would "incorporate" the Bill of Rights as a limit on the states' (as distinguished from the federal government's) conduct, he has consented to a long train of Supreme Court opinions doing precisely that. In the teeth of the 11th Amendment's plain words, he has held that states have a generalized "sovereign immunity" to lawsuits filed in federal courts, even when the claim is advanced by one of the state's own citizens. Contrary to text and tradition, the justice has held "expressive conduct" (such as burning an American flag in protest) to be a form of constitutionally protected speech. And he has aggressively interpreted the Fifth Amendment's takings clause, providing that "private property [shall not] be taken for public use without just compensation" to prohibit not only the physical deprivation of property (like the condemnation of a private home in the path of a future public highway), but also so-called "regulatory takings" by which, for example, a land-use law merely lowers the value of a person's property without actually condemning it.
Rossum gently chastises Scalia for his departure from text and tradition in these areas, but refrains from asking the hard question of whether these are isolated exceptions or evidence of an operative approach that counsels prudential departures from text and tradition under certain (unarticulated) circumstances. It seems clear, for example, as Scalia himself has acknowledged in speeches, that his decision to hold the Bill of Rights applicable to the states is more than a "mistake." It stems from his understanding that, in the contemporary context, this reading of the 14th Amendment has been settled, and that the political and doctrinal repercussions of dislodging it would simply be too pronounced. (On the same grounds, Chief Justice John Roberts and Justice Samuel Alito have accepted a constitutional "right to privacy.") Scalia's reading of the takings clause (Pennell v. City of San Jose, 1988) brilliantly cuts to the core of the law's problem, but addresses it by invoking the wrong part of the text, and imputing an implausible original understanding to that provision. Perhaps he proceeded this way because today it would seem highly idiosyncratic, indeed radical, to invoke the long-since defunct understandings of the appropriate constitutional clauses (in the 19th century, the due process and equal protection clauses would have served). Similarly, he apparently wields the 11th Amendment to reimpose piecemeal something of the states' rights and authority that, under the terms of text and tradition alone, would normally be protected through an appropriately originalist reading of Congress's Article I enumerated powers, which is hardly in the cards.
Sophisticated liberals argue that, in his concessions to new settlements and altered conditions, Scalia is doing pretty much what they are doing, but in different doctrinal areas. For instance, some argue, in the face of conservative complaints (including Scalia's) that the due process clause, by its plain language, refers only to matters of procedure and not substance, that the liberals' substantive reading of the clause is simply a pragmatic, if awkward, substitution for a substantive reading of the all but defunct privileges and immunities clause. Is Scalia really doing anything different?
Rossum thinks that he is. Of course the justice holds the American Founders in high regard and accords their authority considerable weight. But he also consistently troubles to subject their designs and commitments to the acid test of reason, to explicate their logic, and to argue for, rather than assert, their wisdom. Most importantly, he has repeatedly spelled out why the founders' insights and the logic of their constitutional design, as originally understood, are affirmative goods, applicable to today's contemporary questions. And why-in a contemporary context-they do a much better job at safeguarding American liberties than the cascade of enthusiasms, prejudices, and hobbyhorses that have been hawked promiscuously-and more or less successfully-as the very picture of a "living" Constitution.
Scalia has joked that he prefers his Constitution "dead." But, the extremes of judicial willfulness aside, most Americans don't. They want to know why the Constitution, read in a certain way, makes the most sense now, and the justice has obliged them. He has written hundreds of gems of constitutional exposition over the years, which Rossum canvasses in successive chapters devoted to the separation of powers, federalism, substantive rights, and procedural rights. The book includes an introductory chapter explaining Scalia's interpretive theory and a concluding chapter giving an empirical account of his jurisprudential and intellectual influence.
A case in point is his celebrated dissent in Morrison v. Olson (1988). There, alone amongst his colleagues, Scalia insisted that it was unconstitutional for Congress to create an independent counsel, appointed by judges and unanswerable to the president, to investigate and prosecute executive branch transgressions. Passed in the wake of the Watergate scandal, the law was an ostensibly pragmatic and "living" solution to the problem of presidential overreaching in the Nixon Administration-a problem that, it was blithely assumed, positively demanded innovation. Because he took the traditional logic of the separation of powers seriously, Scalia readily discerned what all those rushing headlong to solve the immediate difficulty had missed: that the decision to hand over the core prosecutorial power of the executive to an unaccountable, purportedly apolitical figure destroyed a crucial structural logic inherent in the text. And he saw that the implications for both individual freedom, and the broader political system, would, in due course, be grave. Later, when Kenneth Starr assumed the independent counsel's role, liberals came to see the wisdom of Scalia's dissent, although many were no doubt motivated again by narrow political advantage. Nonetheless, there is more where that came from. Much.
Rossum ably shows that Antonin Scalia is well aware of the complexities of hard interpretive questions and the elusiveness of fixing true original understandings (originalism, he has acknowledged, "is...not without its warts"). Like many liberals, Scalia understands the limits of "plain meaning" textualism, legal formalism, and fidelity. But, unlike them, he has a deep appreciation for their virtues. He knows that judges need to be prudent and pragmatic, and must accept the inevitability of new settlements and change. But he also knows (as the old saw goes) that just because you can never have a perfectly sterile environment, you shouldn't gladly conduct your surgery in a sewer.