At some time yesterday morning, Justice Antonin Scalia died, in his hotel room while on vacation. He was 79 years old and had been a Supreme Court Justice since 1986.
As controversial a Justice as the last 100 years has witnessed, Scalia had superb Constitutional insight — as I shall demonstrate — but also passionate beliefs which often wounded the equally deeply held, opposing beliefs of many. Because very few people, any more, understand what the Constitutional role of Supreme Court Justices was intended to be, most of us assume that Scalia’s often virulent public statements underlay his most controversial opinions. I disagree.
We need recognize that what Justices may say, off the bench, is obiter dicta in the truest sense : commentary, but not part of the judgment. Making judgments is why Justices are chosen. Their off the bench comments are irrelevant to it.
Thus, in this essay, I have nothing to say about Scalia’s dicta. It is his judging that i want to talk about.
As a Justice, Scalia demonstrated an understanding of the relationship between the Constitution and real life as profound as any Justice since Holmes.
Let me demonstrate by quoting his opinion in California Democratic Party v. State of California (530 US 567, 2000), not a decision often talked of by Scalia’s detractors (or his supporters). The case was brought by that state’s Democratic Party challenging a state law allowing any voter, including members of other parties, to vote in the Democratic primary. Scalia wrote the Court’s finding that that law violated California Democrats’ right of free association guaranteed by the First Amendment :
“… States play a major role in structuring and monitoring the primary election process, but the processes by which political parties select their nominees are not wholly public affairs that States may regulate freely. To the contrary, States must act within limits imposed by the Constitution when regulating parties’ internal processes. See, e.g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214. Respondents misplace their reliance on Smith v. Allwright, 321 U. S. 649, and Terry v. Adams, 345 U. S. 461, which held not that party affairs are public affairs, free of First Amendment protections, see, e.g., Tashjian v. Republican Party of Conn., 479 U. S. 208, but only that, when a State prescribes an election process that gives a special role to political parties, the parties’ discriminatory action becomes state action under the Fifteenth Amendment. This Nation has a tradition of political associations in which citizens band together to promote candidates who espouse their political views. The First Amendment protects the freedom to join together to further common political beliefs, id., at 214–215, which presupposes the freedom to identify those who constitute the association, and to limit the association to those people, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107. In no area is the political association’s right to exclude more important than in its candidate-selection process. That process often determines the party’s positions on significant public policy issues, and it is the nominee who is the party’s ambassador charged with winning the general electorate over to its views. The First Amendment reserves a special place, and accords a special protection, for that process, Eu, supra, at 224, because the moment of choosing the party’s nominee is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power, Tashjian, supra, at 216. California’s blanket primary violates these principles. Proposition 198 forces petitioners to adulterate their candidate-selection process—a political party’s basic function—by opening it up to persons wholly unaffiliated with the party, who may have different views from the party. Such forced association has the likely outcome—indeed, it is Proposition 198’s intended outcome—of changing the parties’ message. Because there is no heavier burden on a political party’s associational freedom, Proposition 198 is unconstitutional unless it is narrowly tailored to serve a compelling state interest. See Timmons v. Twin Cities Area New Party, 520 U. S. 351.
“None of respondents’ seven proffered state interests—producing elected officials who better represent the electorate, expanding candidate debate beyond the scope of partisan concerns, ensuring that disenfranchised persons enjoy the right to an effective vote, promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy—is a compelling interest justifying California’s intrusion into the parties’ associational rights.”
Since many of my readers are political activists, and since may of us talk a lot about whether party ptrimaries should be “open” or “close” or “partially open,” how can we help but find shrewd the way in which Scalia relates the political discussion in the real world to the Constitutional precepts that proctor the making of party primaries ? Few of us realize that our process tinkerings have actual Constitutional borders or underpinnings : but here they are, evoked by Scalia with shrewd first Amendment insight..
A friend has asked me to opine about Scalia’s Fourth Amendment jurisprudence. No case better illustrates Scalia’s masterful understanding of this Amendment — and its long history in English common law — than what he wrote in Florida v. Janes (30 So. 3rd 34). I quote from Kevin Russell’s SCOTUS blog :
“In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court. The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment. Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor. Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.
“Justice Scalia’s opinion for the Court resolved the Fourth Amendment question solely on property rights grounds, holding that bringing a dog to conduct a forensic search on someone’s porch constitutes a trespass at common law and, under the reasoning of last term’s GPS case, United States v. Jones, constituted a search subject to the limitations of the Fourth Amendment. While the general public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs. If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.” For that reason, the majority decision found it unnecessary to decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy. When the police trespass onto private property to conduct a search, the Fourth Amendment applies regardless of whether the trespass also invades someone’s reasonable expectation of privacy.”
Scalia evoking the common law of trespass reminds us that the Fourth Amendment — like the First, Second, Fifth, SIxth, and Eighth — did not arise de novo; all drew upon English precedent, some of long standing. The common law of trespass traces back at least to the 1300s, as the King’s courts devised a legal action — one that had not existed before — that property owners (or possessors) could use to prevent unwarranted entry.
My friend notwithstanding, Scalia’s Fourth Amendment opinion contains what appears a contradiction, one that opens doors to the deepest implications of Scalia’s jurisprudence. Bear with me; it’s a fairly long excursion:
1.Why was it was OK, in Scalia’s argument, for the King in the 14th Century to create new legal rights but not OK for the High Court to create new rights today ?
Was it because the King’s realm did not get its power from a written pact (though such did exist in Medieval Europe) and was therefore free to innovate ? Whereas our nation does arise from a written Constitution, and so we are constrained to act within the meaning of its words as formulated ?
Formulation ad hoc is OK, Scalia might say, for societies operating under an unwritten Constitution, because they are in the nature of settlement discussions, not final judgments; and a written Constitution IS a final judgment, a decision.
2.The distinction here goes to the nature of language itself — words as actually used by people. Language is public, communal; it binds those who share it; but language changes all the time, as do the events of life. The meaning of words changes; the spelling and the pronunciation : Latin became French, Portuguese, Catalan, Italian, and so forth, as people in these societies applied their words to new situations and things.
3.It is no coincidence that the most innovative period in European law was that in which literacy was almost non existent except among Catholic clergy and thus legal decisions were hardly ever written down. Law was made on the spot as an occasion demanded it.
It is also not a coincidence that the illiteracy period of European law-making was also marred by widespread violence — anarchy. Nor is it any coincidence that the first European powers to become firmly established in this environ used written documentation as a weapon, wielded by a king or duke to bring order to his realm.
4.From the “common” law — meaning laws common to an entire kingdom — promulgated by these newly prepotent kings and dukes, law that Scalia grants the right to innovate, anarchy found its antidote, and the peace of the realm began to establish. Written laws and judgments, accessible to all who could read them, provided a large measure of unification, and agreement.
5.This is the context in which we should measure our framers’ decision to have a written Constitution rather than an unwritten, as was (and still is) the case in England. Our framers were dealing with enormous disunity ; with 13 states each going its own way. A written Constitution bound them all.
6.The Constitution was like a treaty — and treaties were always written, even in antiquity — and more than that too. It is a prescriptive document and meant as such. It tells us what to do and not to do.
It is a kind of creed as well; a statement of basic arrangements preambled by a magnificent commitment of purpose : to form a more perfect union, and to provide for the general welfare. As such, the Constitution stood in the place of numerous Medieval European pacts, written down in order to bind all who signed them AND to give notice to the entire society thereof.
A written charter served several purposes; giving public notice was perhaps the most significant. Even today, notice is required in all disputes at law. No notice, no case. The Constitution gives notice to all of its existence, its content, its binding consent.
Scalia draws almost all of his jurisprudence from the finality therein and the notice given. But notice of what ? For Scalia, the notice given is of the Constitution as agreed to by those who agreed to it. To admit of evolving meanings, or innovative interpretations, is to let the anarchy of unwritten custom into the temple of written agreement. And Scalia is right about this. The changes that Courts have read into the Constitution are not as agreed as are the written language of it.
7.The Constitution was ratified by vote of elected conventions held in all 13 states. No such ratification validates any of the innovations read into the Constitution by succeeding Justices unelected. What, then, does validate the innovative decisions of the Court ? Custom and sentiment — ephemeral things, as we see toady, when many Court decisions are not at all agreed to.
8.For Scalia there is also the matter of tradition. As with the Roman creed, and the catholic canon law developed from it as practiced ad ordered, Scalia sees the Constitution, and decisions of the Court, as the bulwark of certainty agreed to by all over a long period of time ad thus understood by all. And just as the church reected ghe idea of different customs for different speakers of languages evolved from Latin by word of mouth, so Scalia rejects the notion that Constitution’s words can change meaning, pronunciation, spelling, as do spoken words.
Of this Constitutional view, Scalia has been the ablest advocate maybe ever. And the reach of his view does not stop there. I like to say that for Justices Brennan and Black, both of whom I admire enormously, “the Constitution is for the little guy.” Well? That is exactly the moral basis of Scalia’s literalism. In his view, the ordinary citizen should not have to become a Constitutional scholar in order to figure ot what it requires of her. The simpler, the better; the more literal, the more sure.
9.This is a generous view of citizenship — but, in my mind, it falls short. Is it really too difficult for us to build legal support for a society not simple ? Can the written law not sanction the complexities of even ordinary days ? Simplicity is good; yet we cannot restrict the good to a brief cook book ? Change in societal arrangements shake us like earthquakes : is our society really that fragile ? Church law, which Scalia respected so highly, has a way of managing change : the written canon law is what it is; but the actual facts of ordinary, unwritten life are tolerated.
But our nation is the child of Martin Luther and of the Protestant Reformation, in which printed protest claimed equal standing with written Papal bulls. And asserted superior truth. Our framers were the grandchildren of 200 years of ensuing religious war; they wanted no part of the notion that there could only be one written truth. Their Constitution was to be not a papal bull — incontestible, a final word — but a document admitting change and interpretable by a Court.
10.The framers knew that they had not settled all American politics forever. They themselves argued bitterly afterwards as to the import of what they had done. I think that Scalia decries that bickering. I think he much preferred the incontestible certainty that governs church law.
And now back to my orig9inal essay. I think that Scalia had America wrong. The dynamism that makes us the nation we have always been is to be advantaged, not punished. We have always been a people of adventure, innovation, dissent from the common wisdom. Our entire economy arises from it. We are an economic nation before we are a political one. Scalia’s disapproval of societal change is disapproval of our nation itself.
We do best when we think more deeply than common opinion. We create the most prosperity when we reinvent our lives, and mold language to what we reinvent, and how we reinvent it. The invention of new words, or their reinvention, are the DNA by which we empower our purposes. I see no reason why it is beyond our power to apply similar invention to the laws that govern us.
This is why I prefer the judicial views of Justice Holmes. Who famously wrote, in his great treatise The Common Law, that ‘the life of the law is not logic but experience.” With an unwritten Constitution, that precept is all. How else to operate ? With a written Constitution, printed words threaten to override what we learn, every day, that we did not know yesterday.
Just how does what we learn today comport with what is written ? Is there no place inside writing for what its writers did not specifically know ? If so, then our society will become two societies : a legal printed one and an undergrond one of customs unsanctioned. I think we can do better than that.
Yet I am glad that Justice Scalia has challenged our society’s understanding of its basic law so forcefully. No one who commits to the obligations and rewrads of citizenship can afford not to read what he has said to us about what our nation is about.
— Mike Freedberg / Here and Sphere