Wednesday, January 5, 2011

Justice Scalia v. Alexander Hamilton

The latest issue of California Lawyer includes a short interview with Supreme Court Justice Antonin Scalia.  As you might expect, Justice Scalia offered some robust statements of his personal views on the nature of the Constitution and how the it should be interpreted.  I like Justice Scalia, and I usually agree with him on the proper disposition of cases before the Court, but I think his views constitutional  metaphysics are a bit off base.
You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, "To thine own self be true."
There's a longer point to be made here, which I may make another day, but for now I'll just note that Justice Scalia clearly sees the Constitution as an exogenous instrument for controlling the political impulses of the people.  It's there to tell "the current society that it cannot do [whatever] it wants to do."  It's something separate from and above the people, and, implicitly, its the job of the Supreme Court to protect the Constitution from the people.

That strikes me as a bit off-base.  Consider Hamilton's argument for judicial review in Federalist 78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.

...A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
For Hamilton, the Constitution is an expression of the sovereign people's plan for government.  It is statement of the specific purposes for which the powers it delegates to the general government may be used and, taking in the Bill of Rights and other liberty-oriented amendments, a statement of certain individual rights that may not be violated by the government even if it is in the service of those enumerated powers.  The Constitution, therefore, is an endogenous statement of popular will meant to protect the people from their government.  By extension, constitutional judging is about ensuring that a legislature---be it Congress or a state assembly---does not constitute itself as a faction against the people and proceed to enact legislation that violates the people's will expressed in the Constitution. 

I've written at greater length about judicial power and its relationship to public opinion here and here.

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