Scalia's 'Romancing the Constitution: Interpretation as Invention'

A Summary.

Article can be found on pp. 54 - 58 of the Learning Guide.

Scalia favours an originalism constitutional interpretation view which means (1) adhere to the text; and (2) give text the meaning it bore when it was adopted.
The transformation of American constitutional law has been achieved through two devices.

1st – give new meaning to old terms.

  • Example: The Sixth Amendment’s guarantee to the criminal defendant of “the right…to have the Assistance of Counsel for his defence” has been interpreted to confer the right to have counsel provided gratis – which there is no doubt it did not mean when the meaning was adopted.

But this first device only carries so far, no matter how far one stretches the plausible meaning of the right to assistance of counsel or any other terms of the Constitution, they cannot conceivably produce a right to abortion.

2nd – Doctrine of substantive due process.

  • Example: By reason of this doctrine, the Due Process Clauses of the Fifth and Fourteenth Amendments, which provide, as against the federal and state governments, respectively, that no person shall “be deprived of life, liberty, or property, without due process of law,” are converted from a guarantee of process to a guarantee of substantive rights.

Reasoning? Some liberties, the Court has said, are so important that no process will suffice to enable their deprivation.

Which liberties are these? Rights which, although not enumerated in the Constitution, had at least been universally respected by state and federal governments by the beginning of the Republic.

It is no exaggeration to say that, under the Supreme Court’s current jurisprudence, the United States Constitution contains whatever unenumerated rights the Supreme Court believes it ought to contain.

And what is wrong with that? For the consequence of finding that a particular policy question is answered by the Constitution is to remove that question form the normal sphere of democratic debate.

Another consequence is the expansion of federal law into areas not approved by Congress, and indeed into areas not envisioned by the Constitution.

  • Example: The Constitution gives Congress no general criminal-law jurisdiction; by and large, unless one of the headings of federal power, such as the regulation of interstate commerce, is implicated, crimes are defined and prosecuted by the states.

By giving the Fifth, Sixth, Eight and Fourteenth Amendments meaning they did not bear when adopted – and in many cases meanings that contradicted the long-standing practices of a majority of the States – the Supreme Court has created what Congress itself has no power to create: a highly detailed national Code of Criminal Procedure.
Nowadays it is a rare state prosecution that does not give rise to some arguable claim that the national Code of Criminal Procedure has been violated – thereby subjecting the judgements of the supreme courts of the states to review by individual federal district judges.

This federalising effect of Supreme Court constitutional decisions has brought it about that the United States must have one coast-to-coast disposition of such controversial issues as pornography, abortion, homosexual rights and suicide.

Running a federal system is a lot of trouble; a large portion of Court time is spent sorting out federal-state relations. It is quite absurd to throw away the principle benefit of that system by constitutionalising, and hence federalising, all sorts of dispositions never addressed by the text of the Constitution.

We are witnessing in the United States the conversion of the judicial confirmination process into what might be called a representative plebiscite on amendment of the Constitution. The interest-groups on both sides of controversial issues do extensive research into the backgrounds of prospective nominees to the Supreme Court, and provide to their political allies in the Senate the “dirt” needed to defeat a nomination.

This is a terrible system and the Constitution it produces – a Constitution congenial to the majority – is hardly a Constitution worth having, since the whole purpose of constitutional guarantees is precisely to frustrate the wishes of the majority. As bad as it is however, Scalia prefers this system to one in which the Constitution is designed and redesigned by an insulated lawyerly caste.

Allan's reference to the article in the Lecture

Scalia's main argument for federalism is based upon satisfying preferences. If you have no states, then it is essentially one rule for all. This could mean on a controversial issue such as pornography laws, as raised by Scalia, 51% of the population could support the national law while 49% are dissatisfied. The argument is that by having a federalism system, a higher percentage of people will be satisfied with the current laws. You will never have a situation where all of the population are satisfied, but it certainly seems credible that you have a higher chance under a federalist system.