Another long one, folks... sorry.
Love him or hate him, Antonin Scalia is the most well known judicial theorist out there. Scalia's biting, sarcastic, and usually well-reasoned opinions will leave their mark on constitutional law for years to come. As such, I figured I should dedicate this column to a critique of Scalia's positions on several key cases.
Scalia is described by most judicial scholars as a strict constructionist - one who interprets the constitution literally. To him, the "implied" rights and powers that the court has found throughout our history do not exist - they were not written directly in the Constitution or envisioned by the framers of the document, thus they are illegitimate. This strict constructionism has led him to side with both political liberals and conservatives on various cases.
In his dissenting opinion in the recent Hamdi v. Rumsfeld case, Scalia reasons that the court reads too much into the Suspension Clause of the Constitution which permits habeas corpus to be suspended in times of rebellion or invasion. Here, Scalia believes that there is no military exigency against giving Mr. Hamdi, a U.S. citizen, a fair trial; thus, he must be prosecuted for treason under regular federal law. This decision puts him on the political left of the rest of the court, who ruled that there had to be some restrictions on Mr. Hamdi's rights in the case.
Scalia has sided with the liberals more than once. In the landmark free-speech case Texas v. Johnson, Scalia signed on to William Brennan's opinion that a Texas law banning flag burning is unconstitutional. He agreed with Brennan's assertion that Texas was overstepping its constitutionally permissible role in passing the law. Again, Scalia found himself agreeing with the liberals.
Scalia, however, finds himself more often than not in agreement with conservatives. In a dissenting opinion to the Court's ruling in Locke v. Davey, Scalia opined that a Washington state law that provided scholarships for all students except those who wished to attend seminary unfairly discriminated against religion. Liberals attacked the dissenters for being opposed to the separation of church and state, but Scalia's opinion is not an attack on this principle. It is instead a view that discrimination against religion is not permissible by a strict reading of the Constitution: "If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones."
The oft-attacked views of Scalia on the relationship between church and state, while repulsive to me, are consistent with his strict constructionist view. The "wall of separation" doctrine that most of us hold as sacred today is not a constitutional injunction - it was laid out in an 1802 letter by Thomas Jefferson. The only reference the Constitution makes to religion is the Establishment Clause: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." As such, Scalia disagrees with the notion that church and state should always be separate - the government must only refrain from making religion the law of the land. His Locke dissent demonstrates that principle.
However, his view on church-state separation often veers far from the strict constructionism he holds so dear. His views on the Pledge of Allegiance are obviously culled from a far less strict reading of the Constitution; if ever there was a state establishment of religion, Congress' addition of "under God" to the official Pledge in 1954 is such an act. To the true strict constructionist, "no law" means "no law," but this is a pliable issue for Scalia. In his 1992 Lee v. Weisman dissent, he makes references to a history of public prayer to support a loose interpretation of the Establishment Clause - stating, in essence, that sometimes the establishment of religion is constitutionally permissible. Striking a balance between establishment and free exercise in Lee v. Weisman, which deals with benedictions at public school graduations, was admittedly tricky. However, Scalia's opinion is a dangerous assault on the Establishment Clause and one that cries out for some sort of reconciliation with his usual strict constructionism.
His dissents in Planned Parenthood v. Casey and Lawrence v. Texas share the viewpoint that the opinion of the majority unfairly extends a right to people that is not listed in the constitution. He states that since abortion and gay sex are not listed in the Constitution, the Tenth Amendment defers the delegation of these rights to the specific states. In Scalia's words in the Casey decision: "The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the 'concept of existence, of meaning, of the universe, and of the mystery of human life.' Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected -- because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed."
It is in these cases that I believe Scalia's strict constructionism reaches a fault. He fails to understand the bedrock principle behind each of these cases, namely, defining the role of state and federal government in people's lives. Can the state reasonably outlaw an action because it finds the action reprehensible? Scalia states in his Romer v. Evans dissent, "This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality... is evil." But indeed, the Court decision in Romer imposes nothing - it merely declares that a constitutional amendment outlawing non-discrimination statutes overreaches state powers. Similar reasonings are behind Casey and Lawrence. By framing the issue as imposing a resolution or extending a right not listed in the Constitution, Scalia fails to address the issue of the rightful limits of state powers.
My main critique of Scalia, then, is not his general tendency towards political conservatism. As the first two examples demonstrate, Scalia's judicial theory cannot be buttonholed by political labels. The main difficulty I have with Scalia is his singlemindedness - he concentrates too fully on what rights are explicitly in the constitution versus what rights aren't. This leads to cases such as Casey, Romer, and Lawrence, where he fails to address the real issue behind the case in favor of claiming that the court oversteps its bounds in extending a right. Is a state within its bounds to forbid an action because its people find the action reprehensible? Scalia obviously believes that forbidding such actions is not a power the federal government possesses. Whether or not his power exists on the state level is one Scalia would do well to answer in future opinions.