Luke Gittos Laws should be made by The People, not judges US Supreme Court justice Antonin Scalia is unpopular with liberals, but he has a point about democracy.

As much as one can be a fan of judges, I have long been a fan of justice to the US Supreme Court, Antonin Scalia.

This is despite, not because of, the fact that he is a social conservative and an outspoken critic of many of the Supreme Court’s most liberal decisions. He is one of the most controversial figures in American public life. He is routinely described as ‘evil’ and ‘prehistoric’ for his opinions on cases involving, for example, laws banning homosexual sex and the use of torture. Following his outspoken defence of the Supreme Court’s decision in Bush v Gore, the case which is commonly thought to have ‘decided’ the 2000 US presidential election, many think of him as a right-wing ‘counterrevolutionary’, whose goal is to force a radically conservative agenda through his unflinching endorsement of conservative laws.

The striking thing about the opprobrium that Scalia receives is that he often arrives at his conclusions because of his devout commitment to the separation of powers and limiting the power of the federal courts to interfere in the democratic lawmaking process. Last week, he was in the news for saying that draconian amendments to the Foreign Intelligence and Surveillance Act, which were passed in 2008, could not be challenged in the federal courts, saying that the fact that challenge lay outside the court’s jurisdiction meant it was ‘none of our business’.

In the process of arguing for limitations to the federal courts’ power to bestow rights, Scalia has certainly defended the rights of states to hold and enforce some pretty awful laws. In the landmark 2003 case Lawrence v Texas, Lawrence and his partner had been arrested in their homes for having homosexual sex, which has been outlawed under Texan criminal law since 1974. Lawrence took the case to the Supreme Court to argue that the federal constitution protected the right for homosexuals to have sex, under the Fourteenth Amendment, which is known as the ‘due-process clause’. The amendment prohibits any state body from depriving a citizen of life, liberty or property without proper due process. The argument for Lawrence was that in being denied the right to have sex in his own home, he had been arbitrarily denied a significant aspect of his liberty.

The Supreme Court overwhelmingly agreed that the due-process clause protected Lawrence from interference in his liberty to have sex, but disagreed that the constitution bestowed any ‘fundamental right’ to homosexual sex. Scalia dissented from even this narrow conception of what the constitution protected. He called the decision of the court in Lawrence a ‘massive disruption to the current social order’, because the court had decided for the state of Texas which sexual acts it was legitimate to regulate and which were not. While the majority of the court had found that the Texan laws did not pursue any legitimate state interest, Scalia said: ‘The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behaviour are “immoral and unacceptable”.’ For Scalia, the anti-sodomy law was comparable to statutes outlawing ‘incest, prostitution’ and even ‘working for 60 hours in a bakery’, all of which posed restrictions on people’s liberty without violating the due-process clause. Scalia’s view was that the only thing separating these laws from the anti-sodomy laws, in the eyes of the majority of the court, was the fact that wider social attitudes towards sodomy had radically altered since the passing of the Texan sodomy law.

It goes without saying that the criminalisation of gay sex in Texas was an egregious and archaic affront to individual freedom. But by refusing to allow the US Constitution, and the Supreme Court, to be used as a means of repealing it, Scalia was making a radical stand against judicial activism. It is a difficult reality in democratic societies that sometimes laws persist which many people outside that jurisdiction may find abhorrent. While it is understandable that homosexuals in Texas were desperate to repeal the law in any way possible, the implicit point of Scalia’s opinion was that these changes have to be democratic. The Constitution provides wide ranging protections for the individual against arbitrary state power, but it does not protect any and every right which the Supreme Court, or the petitioners to the court, would like it to protect.

This opinion was reflective of the judicial philosophy for which Scalia has become famed. He is what is known as an originalist. He believes that the only rights granted under the constitution are those which the authors of that document anticipated. He is at odds with the other judges on the current panel, who are more likely to see the constitution as a ‘living document’, which can be defined in accordance with the social values of the day. Scalia sees this ‘living document’ approach to constitutional interpretation as simply a means of advancing ‘activist judging’, or judges making law which they see to be reflective of society’s values.

In opposing this ‘living document’ approach to the Constitution, originalism is, in one sense, a powerful defence of democracy. By allowing the Constitution to be a ‘living document’, and open to judicial interpretation, its adherents invite Supreme Court judges to set and define ‘social values’ on behalf of the American people. Of course, it may be the case that the Supreme Court merely reflects, through its decisions, changes in social attitudes taking place outside the courtroom. This was certainly the case with sodomy, which has become far more acceptable to the American public over the past 30 years.

But this may become more problematic if the court is invited to rule on more contentious areas of public life. It is anticipated that the Supreme Court will rule on the legality of states repealing bans on gay marriage next year, which will undoubtedly involve an appeal to Constitutional rights. To ask unelected judges in the Supreme Court to interpret the constitution to reflect American society is to ask them to officiate over grey areas of public morality, to settle debates, to lay a mark in the sand for acceptable lawmaking. This is fundamentally undemocratic and in opposition to the profound respect for liberty of conscience, an ideological foundation of the Constitution itself.

This is why I think the UK could do with a few more judges like Scalia. I like to think he would have short shrift with the idea of an unelected judge presiding over a tribunal to make recommendations on press ‘ethics’, like our own Lord Justice Leveson. He would decry the idea that judges should involve themselves in deciding who should get the vote and who shouldn’t - although he would defend, as an originalist, the very limited right to suffrage as stated in the Constitution. These are questions which lie at the foot of the legislatures, and require the law to be made, democratically, before being interpreted by the courts.

While many in the US find the outcomes of his decisions unpalatable, Scalia and the doctrine of originalism provide a valuable safeguard against judicial activism. Perhaps we need some similar arguments in the UK, in order to develop our own way to tell judges in British and European courts that many areas of public life over which they now seek to officiate are, in Scalia’s words, ‘none of their business’.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.

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Joe Kaplinsky, 13 November 2012 03:38

It is true that as mass mobilisations for civil rights in the US disintegrated campaigners turned to legalistic strategies, and that gave an opening for conservatives to criticise their anti-democratic character.

But there are serious limits to how far conservatives embrace thorough going democracy - as many of them would be the first to point out themselves.

Scalia wants to hew to the original meaning of the Constitution. But the original meaning of the Constitution is self government. This is evident in its democratic provisions, the right to free speech, to bear arms, and the rest.

A source that helps us understand the original meaning of the Constitution is Thomas Paine. Writing against the first conservative, Edmund Burke, he explained ‘Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it.’

To be true to the original meaning of the Constitution we cannot subordinate our judgements to those who died two centuries ago. Too often this is what conservatives attempt. In the process they create a past as mythical as those who believe that by critical reading we can find any meaning we like in a text.

Corey Robin notes Scalia’s influence - on both liberals and conservatives: ‘Where yesterday’s generation of constitutional scholars looked to philosophy - Rawls, Hart, occasionally Nozick, Marx, or Nietzsche - to interpret the Constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning.’

This is the triumph of historical fact over history making. It has much in common with the fad for evidenced based policy or the role of science in environmental policy in that empirical enquiry into what is and has been replaces philosophical enquiry into what is right and just.