Decius wrote:
Even beyond these affiliations, Justice Scalia’s flamethrowing rhetoric and his hostility to whole chapters of 20th-century jurisprudence have made him a conservative icon and a favorite face on liberal dart boards.
Thats because partisanship is stupid. Scalia's position, generally speaking, is that the Constitution means what it says. When it says freedom of speech it means it. When it doesn't say anything at all about abortion, it doesn't say anything at all about abortion. His position is that if you want to protect something like abortion, you ought to amend the Constitution. As the Constitutional jurisprudence pendellum has swung quite far to the left, in general his perspective ends up meaning that the Constitution protects less rights than we think it does. The result is that authoritarians are happy and liberals are unhappy. But this isn't actually Scalia's goal. Scalia imagines a world in which loose interpretation of the Constitution is employed by authoritarians in the way that it is employed today by liberals. Take the arguements that are made by the left about the second amendment and apply them to the first... "Back in those days you didn't have the Internet (nuclear weapons), you just had pamphlets (muskets)... Allowing people to freely run websites (own nuclear weapons) is crazy, so the Constitution must mean something else... its a vestige of a different time..." This is the future he is trying to fight. He doesn't per say argue that homosexuality ought to be illegal. He argues that if you want to protect it as a constitutional right, you ought to do so with an amendment, which has teeth, rather than a judicial interpretation, which doesn't.
The problem is that the only reason he is allowed to make these arguments in that place is that the authoritarians find him useful. They're not interested in philosophy, and law is not merely a technical pursuit. It is inherently political, and frankly the politics this country most needs is a return to a healthy distrust of authority. I'd trust not the soccer mom Democrats nor the moralizing Republicans nor even the "me first" Libertarians with the task of properly unfucking the Constitution so that the values we actually have are really represented in the text.
Nice analysis Tom! Thats an interesting light with which to reexamine Scalia's decisions.
