It is a safe bet that the smartest guy ever to graduate from Jesuit-run Xavier High in Manhattan currently sits on the U.S. Supreme Court. Even as a student, his former classmates say, Antonin Scalia was scary-smart, first in the class of 1953. "I was never cool though," he once remarked. That seems plausible, especially when one considers how unpopular he continues to be, especially among the chattering political classes who live within a hundred miles of either ocean. To many liberal political activists, Scalia is a neo-Savanarola: a holier-than thou, unyielding social conservative, seeking to impose his narrow-minded morality on the rest of us. He wants "to turn back the clock," we are told, presumably to those definitely uncool years of stifling religious sensibility, "I like Ike", and Jim Crow politics.

The problem with all that, of course, is that it just isn’t true. Scalia may be a social conservative, but like the rest of his colleagues, he decides cases by applying a standard of constitutional interpretation as impartially as possible. In other words, Scalia still believes in what the Jesuits taught him in civics class: the executive branch executes, the legislative branch legislates and the judicial branch interprets. "Ah," you might say, "that is so naïve." Perhaps, but it just happens to be what the Constitution says. What is more naïve, it seems to me, is the notion that we can turn our courts into a third house of Congress without compromising the essential integrity of our constitutional system. Yet that is just what many people (and not just liberals) would like us to do: to resolve our most pressing social questions through judicial fiat. Liberal or conservative, Scalia says, that is a bad idea. The justices should interpret, not legislate.

Still, the question remains: just what standard of interpretation should they use? Scalia thinks that there is a right way and a wrong way to interpret the Constitution and he's been making the case for 'the right way' for two decades, in almost any forum that would have him. Scalia calls his interpretive method "original meaning." Put simply, the idea is that the Constitution should be interpreted to mean what reasonable people would have understood it to mean at the time that its various bits and pieces were adopted. Scalia doesn’t care much for what the author's intention was; in fact, he thinks that his or her intention is not really knowable. In other words, "original meaning" is not an attempt to get inside James Madison's head. Scalia is simply saying that, in a democracy, the standard of interpretation should be what the people who voted for the Constitution and its amendments understood the texts to mean when they voted.

Originalists like Scalia don't think that their method solves every problem, or that it is even the ideal method. Scalia, in fact, has called it "the lesser evil," especially in comparison to the principal alternative: the "living constitution." The "living Constitution" is the idea that the Constitution is somehow an organic entity, that it "evolves" (never "devolves," mind you) along with the inevitable progress of standards of decency and justice. Because the Constitution is somehow 'alive' its words can mean different things to different generations. In film strips in civics class, this adaptability is frequently hailed as the "genius" of our founders. The problem with the idea, according to Scalia, is that if the Constitution can mean whatever we want it to mean, then we have a kind of judicial tyranny on our hands: Courts can take away rights just as easily as they can create them.

Now I don’t completely buy Scalia's argument. It seems clear, as well, that even if one applied his standard of interpretation consistently, one could still reach different conclusions then he has in a range of cases. Yet he is definitely on to something. It's clear that we need some standard of interpretation and a limited standard is probably in everybody's interest in the long run. Constitutions, after all, are as much about limiting government and preserving the balance of democratic power as they are about enumerating rights. It's significant, for instance, that the Bill of Rights is largely a list of "noes" rather than "yeses" ("Congress shall make no law…", etc.)

People who oppose Scalia's jurisprudence usually argue that his method is a smokescreen; it just results in decisions that conform to his personal prejudices. That just doesn't make sense. If Scalia really wanted to impose his personal views, then the "living Constitution" method would be the better way to go. As a living constitutionalist, he would have full licence to rule according to his preferences. Also, his method doesn't always produce rulings that conform with his personal opinions: While pro-choicers get mad when he says that there is no right to abortion in the Constitution, pro-lifers can get mad when he says that there's no so-called 'right to life' either. He has issued rulings or dissents in favour of broader executive power, but he has also defended the rights of criminals using the same standard of interpretation. As a Catholic, he may or may not agree with the morality of the death penalty, but his rulings are based on the fact that the Constitution, not the Catechism, permits it.

True, Scalia's rulings are usually opposed to social innovation. But if the Constitution is as an instrument that limits power, then the answer is going to be 'no' more often than not. Scalia's not saying through his public opinions that there should not be gay marriage or the death penalty in America (though he might privately think those things). He's simply saying that there isn’t a right to those things in the Constitution. "You want that stuff," he says, "then do what we do in a democracy: go out and vote for it. Persuade your fellow citizens that it's a good idea. Organize. Don’t allow unelected judges with lifetime appointments to decide these questions for you, especially questions that are as important as these." On the whole, that strikes me as a reasonable view.

"Ah," you might say, "but what about civil rights and all those undoubtedly good things that the court has brought about? Using his method, wouldn’t Scalia have voted against Brown v. Board of Education, for example?" No, Scalia has said. If the Court had applied his method, Brown would never have been necessary because "separate but equal" would never have been declared constitutional in the first place. But all that is beside the point, it seems to me. We probably shouldn’t decide the best method of constitutional interpretation based on whether it produces decisions that we personally like. After all, that is what we are constantly accusing Scalia of doing.

Comments

Marguerite Spencer | 2/16/2011 - 12:54pm
Marguerite Spencer | 2/16/2011 - 12:53pm
Marguerite Spencer | 2/16/2011 - 12:53pm
Marguerite Spencer | 2/16/2011 - 12:52pm
Dear Marie:

We haven't been offered any answers yet!
Marie Rehbein | 2/10/2011 - 2:08pm
Marguerite,

Your questions lead also to another question, which is whether the idea might not have been for the standard for reasonable-ness to keep up with the times.  For example, it might in this day and age be most reasonable to outlaw private ownership of assault weapons.  Who is to say that the Constitution was supposed to be set in stone instead of being a living document - Justice Scalia alone?
Peter Hawxhurst | 2/9/2011 - 3:34pm
This hurrah for scalia is daff! as the Common Cause letter to the justice dept points out: 
Therefore, Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60(b) motion with the full Supreme Court seeking to vacate the judgment.
The American public deserves answers to a number of questions bearing on whether Justices Thomas or Scalia should be disqualified from the Citizens United case:
 1. Would a reasonable person question the impartiality of Justices Thomas and Scalia based on their attendance at secretive Koch Industries retreats?
 Federal law requires any United States judge – including a Supreme Court justice – to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, citing S. Rep. No. 93-419 at 5; H. R. Rep. No. 93-1453 at 5. “Under § 455(a), disqualification is required if a reasonable person who knew the circumstances would question the judge’s impartiality, even though no actual bias or prejudice has been shown.”  U.S. v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)(internal quotes omitted).
 In October 2010, news reports revealed that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision.[1]
scalia seems to follow only one rule: what's in it for me! he needs to be removed not supported.
Marguerite Spencer | 2/9/2011 - 3:09pm
Could someone assist me in understanding exactly how one determines "what reasonable people would have understood [the Constitution] to mean at the time that its various bits and pieces were adopted?"

I find no instructions on this in Fr. Malone's piece. 

Is there a body of scholarly literature we should read from the time of the founding? Letters? News analysis of the day? 

In turn, which "reasonable people" are we considering?  Landed gentry?  Slaves?  Women? How do we know which are reasonable?

Have the Supreme Court Justices, and other magistrates who interpret the federal or state constitutions, trained themselves to carry out this process of determination?  Should attorneys who argue before them? Scholars? The press? Lay persons?

I ask this in all sincerity.

Marie Rehbein | 2/8/2011 - 9:32pm
Walter, I would add that the Enlightenment thinkers were very big on the use of their God given human reason.   
Marie Rehbein | 2/7/2011 - 11:33pm
Norman and Walter,

Jefferson may have been what we call a deist, and deism became popular in the late 17th and early 18th centuries during the Age of Enlightenment.  If one wants to know what the founding fathers meant when they spoke of God, the answer is probably to be found in the writings of the Enlightment philosophers.  It may not really be very complicated at all.
Mark Harden | 2/7/2011 - 5:31pm
"had they gotten their way, the case would have been resolved in the Florida courts."

Where, as the post-decision newspaper consortium project proved, GW Bush would have been declared the winner. 
Anonymous | 2/7/2011 - 4:30pm
"I wonder if Fr. Malone would apply the originalism principles to exegesis, I doubt it. Surely, there are better examples of a Jesuit education. Scalia is scary alright, more so now than when he was at Xavier."

Nothing like gross misunderstanding leavened with a heaping dose of ad hominem!  I doubt Justice Scalia would apply originalism to exegesis as I'm certain he would say interpreting the Bible is all together different from interpreting a legal document such as the Constitution!  Indeed Justice Scalia's approach is remarkable humble insofar as it recognizes the LIMITS of the text of the Constitution.
Liam Richardson | 2/7/2011 - 3:21pm
Um, Breyer and Souter only joined the portion of the decision about the issue of different counting methods. They did not join the rest of the decision; had they gotten their way, the case would have been resolved in the Florida courts.
Mark Harden | 2/7/2011 - 3:03pm
"Note Justice Antonin Scalia's recent address before a closed-door meeting of the Tea Party Caucus"

Liberal bloggers at TPM themselves debunk the implied slander of that comment at
http://tpmdc.talkingpointsmemo.com/2011/01/dem-reps-back-scalias-attendance-at-tea-party-constitution-event.php


But Monday evening, two progressive members who attended the seminar vouched for Scalia and the event, and dispelled the notion that anything untoward happened.

According to Rep. Jan Schakowsky (D-IL), who addressed reporters just outside the forum, the event was "incredibly useful, partly just to get the sense of Justice Scalia as an individual."
"He talked about a couple of old cases where the Congress made mistakes, he felt, in its judgment," Schakowsky added. "But they were not especially of a political nature.... This was pretty dry, actually."
All members of the House were invited and allowed to bring a staff member. "There was absolutely no effort to keep anyone away," Schakowsky added. "Certainly it's useful to have justices come."
Rep. Jerrod Nadler (D-NY) - one of the foremost Constitutional experts in Congress - largely confirmed Schakowsky's interpretation, noting that Scalia steered clear of addressing timely issues, and that the members who asked questions weren't pressing him for legislative guidance.


JOHN SULLIVAN | 2/7/2011 - 2:17pm
" I was never cool though"-Indeed! Scalia strikes me as someone, not withstanding his smarts, who relishes his role as the contrarian for no other reason than it sets him apart. I wonder if Fr. Malone would apply the originalism principles to exegesis, I doubt it. Surely, there are better examples of a Jesuit education. Scalia is scary alright, more so now than when he was at Xavier.
Mark Harden | 2/7/2011 - 1:59pm
" There are those who give deference to the Supreme Court's supposed political neutrality with regard to this decision..."

If you deny the neutrality of the decision, please explain why ultra-liberal justices Breyer and Souter sided with GW Bush. 
Marie Rehbein | 2/7/2011 - 1:35pm
RE Handing Bush the presidency:  There are those who give deference to the Supreme Court's supposed political neutrality with regard to this decision and then claim that the Supreme Court has been "legislating from the bench" with regard to Roe v. Wade and other decisions they don't like.  Well, it's not likely that it was any more neutral when the election was decided than when Roe v. Wade was decided, which means that any debate regarding the rightness or wrongness of any decision will never be definitive.

RE "Justice Scalia is a solid vote against laws banning flag burning, something he has personally admitted he finds anathema."  Yes, flag burning - a burning issue.    

 
Mark Harden | 2/7/2011 - 12:30pm
Good grief, the Stolen Florida myth abides:

"When Scalia voted along party lines to give George W Bush the presidency"

There were two SCOTUS decisions involved. The one which effectively stopped the recount from proceeding was decided on Equal Protection grounds by a vote of 7-2. The 5-4 vote so often cited was on a lesser issue. So, "voting along party lines", you'll need to analyze SEVEN judges, including Breyer and Souter, who voted to "give GW Bush the presidency".
http://en.wikipedia.org/wiki/Bush_v._Gore#Vote_breakdown_and_opinions

In any case, if the recount had not been stopped Bush would still have won under the recounting scenario being pushed by Gore's legal team. A media consortium including the AP and NY Times among others determined this after the decision was rendered:
http://en.wikipedia.org/wiki/Florida_election_recount
"The media recount study found that under the system of limited recounts in selected counties as was requested by the Gore campaign, the only way that Gore would have won was by using counting methods that were never requested by any party, including "overvotes" — ballots containing more than one vote for an office."

So, please give up on the "Bush stole Florida" foolishness. 
Vince Killoran | 2/7/2011 - 9:12am
Matt Malone contributes fairly long post but here's the only critical note: "Now I don’t completely buy Scalia's argument. It seems clear, as well, that even if one applied his standard of interpretation consistently, one could still reach different conclusions then he has in a range of cases."

No explanation, no details.   Originalism is highly controversial and deserves a more nuanced treatment.
Anonymous | 2/7/2011 - 8:22am
Mr. Costa -  What could have Mr. Malone said (other than what agrees with your opinion) that would have been sufficiently "substantive" in your opinion?  My only thought is that Malone doesn't mention the clearest example of an opinion that conflicts with Justice Scalia's personal opinion - flag burning.  Justice Scalia is a solid vote against laws banning flag burning, something he has personally admitted he finds anathema. 

On another note, a previous commentator knocks Scalia for thinking that the Constitution as originally written gives us a detailed list of answers to all questions.  This is a severe misunderstanding of Scalia's thought; indeed, Scalia believes the OPPOSITE to be true, hence the reluctance to "constitutionalize" every issue.

Finally, Scalia would object (I believe) to the assertion that the Bible must be interpreted the same as the Constitution.  For Scalia, the Constitution is first and foremost a LEGAL document and as such must be intrepreted in a LEGAL manner.  The Bible is all together a different kind of text.

This is a very good piece!
HAROLD HARTINGER | 2/7/2011 - 1:01am
Fr. Matt Malone,

Justice Scalia’s “originalism” is not an appropriate interpretive tool for adjudicating constitutional issues. There is nothing wrong with a “living Constitution,” properly understood. The comments above prompted the following comments.

Boston College law professor Gregory Kalscheur, S.J., published a thoughtful review of Jaroslav Pelikan’s book, “Interpreting the Bible and the Constitution.” His review is available on the Internet:

Kalscheur, Gregory A., Christian Scripture and American Scripture: An Instructive Analogy? Journal of Law and Religion, Vol. 21, pp. 101-142, 2005/2006; Boston College Legal Studies Research Paper No. 71. Available at SSRN: http://ssrn.com/abstract=789845 or doi:10.2139/ssrn.715462

This is Kalscheur’s opening paragraph: “As a Jesuit priest whose ministry includes the teaching of constitutional law, I regularly struggle with the task of interpreting two foundational normative tests: the Bible and the U.S. Constitution. The Bible plays a central normative role in the life of the Church while the Constitution provides a normative framework for American law and polities. Both of these textually constituted communities face the challenge of appropriating for contemporary experience a normative test produced in a significantly different historical contest. But can American constitutional lawyers learn anything from the ways in which the Bible has been interpreted with the life of the Church?”

HARRY
 
 
 
Anonymous | 2/6/2011 - 11:25pm
I know I'm late to the party.  My only contribution to this is to note with gratitude the sympathy Mr. Malone (whose writing I've criticized previously) shows to a position with which it is clear he disagrees.  It stands as an example to all of us in how we ought to approach the arguments of those with whom we disagree.  Sad to see some of these comments still failing to take seriously the intellectual integrity of Justice Scalia.  I was privileged to witness live a dialogue between he and Justice Breyer. an exchange that does more good for the Court than anything I can imagine.

PS - there was a "knock" on Justice Scalia's speech to a closed-door "Tea Party Caucus".  That is factually incorrect.  ALL members of Congress were invited, and in fact about 4 liberal Democrats attended (Nadler from NY being one); to a person their public comments expressed appreciation (if not agreement) for Justice Scalia's presentation.
FRED CLOSE | 2/6/2011 - 7:37pm
Put me down with the nice analysis crowd, and with the AAAARRRRGGGHHH! for those who write think our nation is a democracy, it is a republic; or worse, for those so misinformed that they write that Mr. Justice Scalia (somehow only he gets blamed) gave George Bush the presidency in 2000.  Enough, please! No matter how many times the votes were counted, or who counted them, he won that election.  It wasn't like the 1960 election, decided by the Mayor of Chicago by some accounts!?
Liam Richardson | 2/6/2011 - 6:39pm
Some important "Founders" themselves "developed" their understanding of how to apply their "principles" in their own lifetimes.

Madison, the "Father of the Constitution" himself, much beloved of the Federalist Society, was a quadruple somersaulter, and sadly the last phase of his life found him in reactive passivity when he could have helped lead Virginia out of its dead end.

Jefferson was less of a somersaulter, but still one. And a lot of people don't realize other contradictions to his popular image among modern constitutionalists (for example, he didn't mind sedition laws at the state level so he was no free speech absolutist). And like Madison, he spent the last years of his life in something of a political reactionary phase.

John Adams somersaulted, too, but in something of an opposite direction that many people don't know of today. His last elected office was as a delegate to the Massachusetts constitutional convention of 1820, which was gathered to amend the constitution of which he was the prime author 40 years earlier. He was 85.  The convention tried to elect him its presiding officer, but he declined. He fought for two things, and, being an Adams, lost on both fronts. One was to preserve the unique 3-tier franchise qualification system (for municipal, state and federal elections) - he lost to the proto-Jacksonian wave. The other, very interestingly, was to in essence to disestablish the church (Congregational and Unitarian - the establishment varied by town, with richer towns tending towards Unitarianism by then) - but that battle was won just over a dozen years later. Adams had deep principles, but was willing to reconsider them, but never as opportunistically as some of his peers.....
JIM MCCREA | 2/6/2011 - 4:54pm
Re:he original intent interpretation of the constitution.
Oh, do you mean the parts about disenfranchisement of women and treating black men as 3/5ths of a person?  That original intent?
Anonymous | 2/6/2011 - 4:44pm
For a discusion of ''originalism,''  here is one written just a couple months ago by a legal scholar.  It is obviously not everything but covers a lot of ideas embodied by the concept.
 
http://lsolum.typepad.com/legaltheory/2010/10/legal-theory-lexicon-originalism.html 

Vince Killoran | 2/6/2011 - 1:24pm
Thanks to Justin and others to putting a little more detail into what is truly a "puff" piece on Scalia.

Walter, I think that you've missed my point and summoned up the ghosts of Stalin, Mao, and Hitler to make a political point (let's use these names responsibly please). The point I was making was that it was unwise to use a document written in a pre-industrial era as a detailed, stand-alone guide for how we address Constitutional issues today. I don't think you can do it, and I don't think the Framers even envisioned this. Some of Scalia's decisions are actually imgained historical dialogue that he writes as a way of filling in his missing facts (the book to which I referred in #2 focuses especially on this).

That doesn't mean we don't use the Constitution.  Walter presents it in such stark terms: either we embrace originalism or it's like Thunderdome where anything goes. Far from it, and to suggest this demonstrates a lack of knowlege of American legal history.

As for the New Tesatment-well, fellow Catholics, we draw on much more than the NT to inform how we live out our faith today.  Originalism better fits fundamental Protestantism.
Tom Maher | 2/6/2011 - 11:46am
The origninal intent interpretation of the constitution of course is not unique to Justice Scaliua.  This interpretation has been around since the country's founding and is widely advocated today. 
Justin Melkus | 2/6/2011 - 11:33am
Regardless of the author's or readers' opinions on originalism, I have to say with all respect that this piece is completely lacking in substance.  It is a fact-free cheerleading piece for Justice Scalia that is completely devoid of any real analysis of the pros, cons, or rationale of Scalia's philosophy.  I don't think this piece should read like a law review article, but this magazine is meant for pretty intelligent, well read people.  I think we all deserve something a little more heady than this puff piece.  It mostly sets up a bunch of straw men, knocks them down, and pats itself on the back.

For example, there's no discussion or mention of the recent comments by Scalia that the Fourteenth Amendment doesn't guarantee women to be free of legal discrimination by the government (a.k.a., being deprived of due process) because the "original intent" was that the Amendment applied only to men (and black men in particular).  This, despite the fact that the Fourteenth Amendment says "no PERSON..."  No matter, according to Scalia, what the word "person" actually means under the English language, because in the 1860s everyone just assumed it applied only to men because legal discrimination against women continued thereafter for decades and no one cared.  Therefore, "person" doesn't mean "person," it means "man."  This is not a legal philosophy, it is sophistry.  It seems designed to provide the peace of mind of a false certainty and freedom from the sometimes uncomfortable obligation to actually perform a legal analysis, make a decision, and be accountable for the consequences as a jurist.  Instead, he can portray himself as little more than an automaton who just spits out the "right" result based on a pretend comptuer program masquerading as a philosophy.  Then, Scalia gets freedom from accountability for his decisions while seeming to be the smartest, reasonable man on the court.  In reality, he has abdicated his intellectual and moral obligations as a jurist.

You may agree or disagree with that, but originalism deserves a more detailed treatment in the pages of this magazine than its been given here.

What would Scalia's solution be? Presumably to pass another, identical, amendment that either says person or woman, and would be "understood" today to include women.  This holds us prisoner to the mores and prejudices of the past just as Originalism pretends to free us from the custody of the mores and prejudices of today.
Liam Richardson | 2/6/2011 - 9:27am
PS: A justice who confected a right to an unclouded electoral victory  (his choice of the cloud metaphor) in one of the interlocutory rulings in Bush v Gore forfeited his claim to be an "originalist". That's when many people who were formerly his fans began to see the man behind the curtain was a fraud in terms of his principles.
Liam Richardson | 2/6/2011 - 9:24am
As someone who became intimately familiar with J Scalia and other originalists when I was editing their works on an originalist-friendly law review in the 1980s, I would like to say that originalism is less than it appears. Justice Souter's address last year is probably the best substantive objection to start with, and should be examined.

But, even on its own terms, there are so many questionable assumptions about originalism:

1. Original text contains conflicts (see J Souter's address, again)
2. Original intent and context: also contains conflicts. After all, there are drafters and then the true legislators were not the drafters, but the ratifiers. And the ratifiers understanding contained tons of conflicting understandings.
3. In the end, the founders, drafters and ratifiers - and the first generations of government - were all opportunistic in their approach to interpreting Constitutional principles. That's really the truest foundation of "Originalism".
4. The Reconstruction Amendments gave Congress plenary power to do many things. The Slaughterhouse Cases read that power out of them. So we've been reading that power back in through the back door, as it were.

Et cet.
Tom Maher | 2/6/2011 - 1:03am
The interpretation of the Consitution is a red hot topic especially after the Jan 31, 2011 ruling by Fedreal District Judge Roger Vinson that Obamacare is unconstitutional.   Judge Vinson's ruling struck down the entire Healthcare law based on the the law's individual mandate on everyone to buy health insurance. Judge Vinson found that the individual mandate can not be reconciled with a limited government with enumerated poweres.  Specifiically the commerece clause of the Constitution which allows the federal goverement to regulate interstate commerce could not be used as a basis to require all individuals to buy health insurance - the individual mandate of the new healthcare law.  

So now we have two federal juges ruling against the contitutionality of the new healthcare law and two federal judges ruling for the new healthcare law as constituional.  So this new law is headed for the Supreme Court sooner or later where the original intent of the commerce clause will be a central issue.

The Constitutionality of the individual mandate has a lot of people concerned.  So far 26 states are challenging the  new law over the indiidual mandate and other mandates in the law.

So it is very timely to review what the U.S. Constitution is all about and how it should be interpreted as this article does so very well. 
Vince Killoran | 2/5/2011 - 11:55pm
No one is "writing off the Constitution."  But no one should pretend that it is some detailed set of instructions on how to conduct our civil society in the 21st century. As one legal scholar noted recently it's a mindset very much informed by fundamental Protestantism.  The framers broke away from that in presenting us with this document.  They gave us a form of government, some broad guidelines, and an order, in effect, to "figure it out yourselves."

My argument about Scalia (who, by all accounts, makes a wonderful dinner party guest) et al. is that the originalist framework fails on its own terms.
Bill Mazzella | 2/5/2011 - 9:36pm
When Scalia voted along party lines to give George W Bush the presidency, his wife greeted him at the door with champagne to celebrate. Nothing personal, of course. Secondly, the Jesuits have done a lot of good things. They are not perfect. We should be careful to blame them for things.
Thomas Piatak | 2/5/2011 - 7:04pm
Thank you for this thoughtful piece on Justice Scalia.

Of course, Justice Scalia's writings are the best introduction to his judicial philosophy.  For those who are interested, I highly recommend his spirited dissent in Planned Parenthood v Casey, under whose specious reasoning millions of unborn children have been done to death.  Scalia's dissent may be found here:  http://www.law.cornell.edu/supct/html/91-744.ZX4.html
Anonymous | 2/5/2011 - 5:13pm
Marie - I think what he does is throw it back to the States under the 10th Amendment.
Marie Rehbein | 2/5/2011 - 4:00pm
The Constitution doesn't declare a right to abortion and it doesn't declare a right to life.  It doesn't declare a right for people to marry a person of the same gender and it doesn't prohibit it.  So, the result is that Scalia interprets these controversial cases on the basis of personal philosophy, no? 
Anonymous | 2/6/2011 - 11:36pm
Some of the commentators have accused Fr. Malone of providing no substance on this topic.  In fact he has provided a lot.  I suggest that those interested read the reference I listed above and compare it to Fr. Malone's post.  It is certainly requires more than a few short paragraphs to discuss this topic but the idea of meaning is one of the key issues.  There are certainly others but the original post was a fairly good presentation of one position that is seriously considered.


Fr. Malone said ''Originalists like Scalia don't think that their method solves every problem, or that it is even the ideal method.''   So even Fr. Malone and Scalia do not think it is the be all and end all.  I suggest those interested read


http://lsolum.typepad.com/legaltheory/2010/10/legal-theory-lexicon-originalism.html
jim dick | 2/5/2011 - 2:17pm
Just a quick and germane comment. There is little doubt that the Supreme Court has become more "political" these days than in the recent past. Note Justice Antonin Scalia's recent address before a closed-door meeting of the Tea Party Caucus and today’s news of Justice Clarence Thomas's wife Virginia Thomas' naming herself the “ambassador to the Tea Party movement" Is this not more than just a bit troubling?
HAROLD HARTINGER | 2/5/2011 - 2:12pm
Your fulsome praise of Justice Scalia and his judicial philosophy is startling! You vouch for the reasonablness of Scalia’s judicial philosophy and its (generally) impartial application in the opinions he writes.
You haven’t persuaded me on either point. But of course, I live within a hundred miles of the ocean, and am comfortable listening to the “chattering political class,” which also includes politial historians such as Pauline Maier.
As I see it, the Constituion was adopted as an extension of English common law, and therefore it must be read in the common law traditions. The opinions of Chief Justice Marshall impress me, as do Professor Maier’s writings, “American Scripture: Making the Declaration of Independence” and “Ratification: The People Debate the Constitution, 1787-1788.”
Anonymous | 2/5/2011 - 1:21pm
There is a lot of discussion about original intent in historical papers.  There is a Teaching Company Course on the writing of the Constitution which refers to lots of primary sources and the arguments that raged in the late 1780's and early 1790's.


http://www.teach12.com/tgc/courses/course_detail.aspx?cid=4878


There is another course on Civil Liberties and the Bill of Rights


http://www.teach12.com/tgc/courses/course_detail.aspx?cid=8530 


An excellent place to go to if you want an academic presentation of the Constitution.  There is nothing in the first course on how the constitution played out over time but the second course discussed several issues as they refer to individual liberty as time went on.
Vince Killoran | 2/5/2011 - 12:44pm
"[H]is method doesn't always produce rulings that conform with his personal opinions"

But they usually do.  Thomas Keck's THE MOST ACTIVIST COURT IN HISTORY is a powerful account of how originalists have used their approach in an inconsistent manner and concocted historical fiction when it suits their pre-determined views.


The original intent notion is plain silly, i.e., subscribing to the view that we must depend on on the views of wealthy 18th century planters and merchants for legal decisions.  Can you imagine NASA scientist trying to fix the Hubble spacecraft with only the work of Issac Newton at their side?

As for the argument of original intent, how about this: the "original intent" of the founders was that there be no orinal intent.
Anonymous | 2/5/2011 - 12:09pm
Nice analysis.


Recently saw the play Lombardi and in it were references to his Jesuit education and how it affected his life as well.