On Scalia

Well, I’ve read a little more of Scalia’s writing and his judicial theories. I picked this book up after the recent kerfuffle involving J. Scalia in order to learn a little more about him. And I’ll say it again, those who think Scalia is “bigoted” (because of his decision on Lawrence) are just listening to the liberal/MSM choir and … well let’s not go there.

Justice Scalia has a theory of textualism, a methodology of extracting the reasonable meaning from the text of Law, not the imagined “intent” of the lawmaker. He frames persuasive arguments for why this methodology is a good idea. The jurist using these principles has to weigh his reasonable interpretation of the text with stare decis in passing judgment. He feels that the judiciary is the least democratic of the three branches of government and must restrain itself from the tendency to legislate from the bench. Finally, as the duly elected representatives (that would be the legislators) are fully free to pen stupid laws. It is not his role to correct their stupidity from the bench, only to decide on their fittingness with the Constitution. In fact, correcting their stupidity is wrong. It is an abuse of power. This is the reason why he dissented in the Lawrence decision. His dissent flowed from these principles. To argue against his reasoning in his decision requires first attacking his methodology. Accusing him of bigotry based on his dissent requires it seems to me that one must show that both that his methods evidence bigotry or that he deviated from his principles in this decision.

Additionally, to oppose his dissent, one would have must use a different method of interpretation of Law and Constitution. That is to argue that judicial “activism” is a good idea. The idea that using various divining rods to “invoke” the “intent” of the legislator instead of what is written is dangerous. Or possibly, in my view much worse, to rule not based on the actual written Law, but on other extraneous outside influences (like say cultural norms or even foreign(!) practices). It may today in fact serve the purposes of (say) the party currently having lost the majority (or some special interest groups). But granting that kind of power or approving that kind of behaviour by the judiciary in general is not a safe policy.

Now this may in fact be the reason behind the frantic handwaving and posturing going on in our hallowed Congressional halls with respect to judicial appointments. To grasp at remaining legislative influence the Democrats have turned to embracing judicial activism and increasing the influence of our jurists. However, that means judicial appointments have ever more meaning.

If on the other hand, the party in power the loyal opposition would instead seek out more jurists like J. Scalia who do not seek to inflate the judiciary. Who will let legislators write dumb (and good) laws and not seek to rule from the bench, then we will all be better off.