Friday, August 3, 2012

Justice Scalia's contradiction

Justice Antonin Scalia is widely regarded as a highly intelligent man.  He claims to be a Constitutional "textualist," which he says is a subspecies of "originalism."   He focuses on what he thinks the text of the Constitution actually said when it was adopted in 1787.  No fuzzy speculation about what the framers "meant."

Some court observers would say that doesn't stop Scalia from some fuzzy thinking when he allows his conservative ideology and, frankly, his cantankerous personality to influence his decisions.   But Scalia, of course, would debunk the idea of his own subjectivity as vehemently as he refuses to recuse himself in cases where he obviously should do so.

Scalia also rejects the idea of a "living constitution" that needs to be interpreted in light of modern developments that were not known to the constitution's framers in 1787.   This applies both to technological and scientific developments, as well as to cultural mores and social attitudes.

But here's where he is inconsistent.   Either he has a blind spot to his own subjectivity (he thinks he is completely objective and completely right) -- or I have a blind spot in being able to understand how his seemingly contradictory statements actually cohere.

In a Fox News interview with Chris Wallace,  Scalia was asked about the possibility of putting some limits on the "right to bear arms," such as limited ownership of assault rifles.    He leaves open the possibility of some limits, saying that the limits to Amendment 2 will be dictated by "whatever Society feels is appropriate at the time."

It sounds like he's saying limits would be constitutional to the extent they reflect a poll of the people as to what they feel is appropriate.   Or does he mean what a majority of the justices deem that "Society feels is appropriate"?

No matter how much I think about this, I cannot square this with his insistence that the Constitution is not a living document, that it means now what it meant in 1787, and that we cannot choose to read into it what is not there or interpret it through the lens of modernity.

If anyone understands this obvious contradiction, please explain it to me.

Ralph

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