Friday, April 5, 2013

Scalia's Judicial Activism

Justice Antonin Scalia on CNN, July 18, 2012
(Photo credit:
During an appearance at Southern Methodist University, Supreme Court Justice Antonin Scalia declared that the Constitution of the United States is "dead, dead, dead". Which raises an interesting question. If the Constitution is "dead, dead, dead", does it mean it should be buried? We bury the dead because after a few days they start to stink, stink, stink.

Justice Scalia is renowned for being an "originalist'. More specifically, he uses "original meaning" to interpret the Constitution. "Original meaning" is different from "original intent". The latter interprets the Constitution based on what the framers intended to achieve. And that is not Scalia's judicial philosophy. During a sparring match with Justice Stephen Breyer, Scalia said:
"I don't care a fig for the framers. I care for the people who ratified the Constitution. I don't believe in original intent. I believe in original meaning. What was the meaning of the Constitution when the people ratified it.... what the people agreed to when they adopted the Constitution. What they agreed to when they adopted the Bill of Rights is what ought to govern us [Supreme Court]."
Whether or not the people who ratified the Constitution agreed to place a straight jacket on future generations is questionable. As Justice Breyer pointed out, the Preamble states "We the People" and not "We the People of 1787". Nevertheless, Scalia believes that the Constitution is static and the only way to change its meaning is through the amendment process.

Well... that is what Scalia says. What he does is not so static. Just look at the Heller decision.

It is quite clear from the historical record that the Second Amendment always had a military context. The Amendment was adopted to address concerns raised during ratification that standing armies during peacetime would endanger liberty. Moreover, the Constitution gave Congress the power to organize, arm and discipline the militia which could be used - the Anti-Federalists feared - to destroy state militias and threaten the freedom and security of each state. During the Virginia convention, George Mason articulated the concern shared by many. He said:
“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.”
Most readers find the text of the Second Amendment ambiguous. If it is an individual right, why mention the militia? Why mention the security of  a "Free State"? Mason's statement clarifies all ambiguity. The Second Amendment was adopted to prevent the Federal government from disarming state militias.  It had nothing to do with civilian uses of weapons as in Heller. 

Any residual doubt about the military context of the Second Amendment should disappear with a reading of Madison's original draft of the Amendment. It included a provision that "but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." In order words, a conscientious objector clause. Would such provision even be considered if the Amendment was addressing civilian use of weapons? Doubtful.

Undeterred by history, Justice Antonin "Original Meaning" Scalia is determined to find an individual right even if it means engaging in judicial activism. He takes the Amendment and divides it into two separate clauses: prefatory and operative. The prefatory clause contains the text "A well regulated Militia, being necessary to the security of a free State". And, the operative clause contains the language "the right of the people to keep and bear Arms shall not be infringed."

He then proceeds to marginalize the prefatory clause by stating that it only states one purpose for the Amendment and does not place any limits on the operative clause. Never mind that if it weren't for concerns over state militias being disarmed, there would be no Second Amendment. Never mind the little speech Scalia gave that justices ought to be governed by what  people agreed to when the Bill of Rights was adopted. All that is thrown out with an assertion that the militia language is just one purpose and not THE EXCLUSIVE purpose.

This is judicial activism at its best. The prefatory clause does not state that the Second Amendment's purpose is strictly militia related. Therefore, we can stretch the operative clause to include civilian use. And just like that a brand new individual right is created. Justice Scalia - who is still scratching his head over the right of privacy encompassing private sexual behavior between consenting adults and control over one's reproductive organs - has no problem at all finding an individual right to self defense in an amendment designed to prevent the disarming of state militias.

Scalia's judicial activism in the Heller decision is even more striking when one considers that he could have easily used the 9th Amendment to establish a constitutional right to self-defense and still kept his reputation as a conservative jurist intact. But Scalia's goal was to broaden the scope of the Second Amendment to mirror the conservative view that it is an individual right unconnected to the militia. And if that meant breathing new life into the Constitution, he was more than happy to oblige.