Monday, February 15, 2016

Scalia: The Democracy Weilding Justice

Scalia receives a lot of unwarranted publicity from the Left. He is often referred to as a dumb partisan bigoted sexist homophobe. This is not only uncalled for, it is wrong. Scalia was one of the most sensible Justices to ever serve on the Supreme Court. Scalia was not only predictable and consistent, every decision he made protected the democratic process. In other words, Scalia decisions allowed states and individuals to choose how they want to be governed, and opted against having a panel of nine justices determine the laws of 325 million American citizens.

Scalia was far from dumb. As an originalist, he interpreted the Constitution as our Founding Fathers would have wanted. He saw dangers in substantive due process and inventing rights that are not written in the Constitution. In order to interpret the Constitution as our Founding Fathers intended, Scalia had to study thousands of documents such as the Federalist papers to know what these great men were thinking when they wrote the document. In a famous Second Amendment case, District of Columbia v. Heller, Scalia determined that the word “Militia” was the same as an individual citizen through his research.

Scalia’s closest friend on the Court was Ruth Bader Ginsberg. Although he and Ginsberg did not agree on much, they could set aside work and be friends. And with certainty, Ginsberg would not be friends with a bigoted homophobe.

Scalia was conservative, but he was more likely to vote with the liberal bloc of the Court than Thomas or Alito. In fact, he was more opt to vote liberal than the four liberal Justices were to vote conservative. He joined liberals over First Amendment free speech cases on numerous occasions. Scalia sided with liberals over flag burning calling freedom of expression free speech. He also sided with hate speech in a Minnesota case. He also sided with liberals in cases over the content of computer games.

Scalia also joined the liberal bloc over several religious freedom and parental rights cases. In most of these cases Scalia did not like the decisions and outcomes, but he could not change the wording in the Constitution to mean something it was not intended to mean. However, the Left decries Scalia’s decision on Citizens United (allowed unlimited campaign contributions). Scalia argues that if a Newspaper can endorse and spend unlimited funds to support a candidate, then why can’t other people, groups, or companies do the same? If free speech includes the freedom of expression, then the use of money is the most common form of expression. Scalia is consistent with his stance on free speech, it is the rest of the Justices whose decisions are contradictory.

Most wrongly assert that Scalia was against the rights of criminals or the accused. Yes, it is true Scalia sided against the accused a majority of the time, but he was not that narrow minded, partisan, or shallow to see everything that way. For instance, Scalia was scolded for being against the Court’s Miranda decision and other accused rights. However, Scalia not only had a broad interpretation of the First Amendment, but the Sixth Amendment as well, especially the “Confrontation Clause”. It states “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him”. So he routinely ruled against people who testified via video or video conferencing. Scalia even sided with liberals to rule the use of heat or thermal imaging technology was inadmissible without a warrant.

Scalia was often ridiculed for his views on diversity or affirmative action. Although Scalia rightly points out that there is nothing in the Constitution to allow quotas, it did not stop the Left from their pointless attacks. Scalia also rightly points out that we are all Americans and the Constitution does not see color. Furthermore, allowing ethnic profiling behavior is no different than what slave owners did. Scalia, would have been on the right side of history if he voted in either landmark case: Plessy v. Ferguson or Brown v. School Board. He is quick to explain the Fourteenth Amendment was written specifically to prevent the type of racial injustices brought up in these cases. Besides, once affirmative action or diversity laws are passed, they are hard to overturn even if their “usefulness” is outdated. And Scalia understood the dangers or future consequences for bad decisions.

Scalia ruled against gay marriage and abortion rights at every opportunity. No, Scalia was not a sexist or homophobe. Obviously the rights of gays to marry and women to have an abortion were substantive due process decisions. Meaning, although the rights did not actually exist in the Constitution, Justices were conjuring up these new rights as a means for the Constitution to keep up with the changing times (Progression). These are prime examples of Scalia’s democratic thinking. Scalia felt states and individuals could generate laws on these matters as they see fit and not have nine people generate legislation for everyone. Scalia believed in the will of the people, he said he was not “King”. He believed in limiting the power of the Supreme Court. Yet, he was called racist and sexist. If the conservative viewpoint that life begins at conception was argued before the Supreme Court, Scalia would rule against this notion. It is not defined in the Constitution. Scalia was not being partisan, but sensible. Scalia knows that conjuring up new rights can be dangerous. For instance, legalization of polygamy could use the same arguments as those used by gay marriage to pass. Gay marriage or abortion arguments can be a stepping stone to make euthanasia legal. This creates a slippery slope and Scalia was right to want to avoid these unnecessary consequences. Another such case is ObamaCare. Scalia understood that allowing the government to mandate its citizens buy a product or face a tax could have dangerous repercussions in the future. This yields tremendous power to the government that if used freely could impact citizens negatively.

Scalia and most scholars also rightly point out that the use of substantive due process in both the landmark gay marriage and abortion cases was not even applied properly. Substantive due process is used in cases where the action or issue is deep rooted in American history. Gay marriage and abortion are not deep rooted in American history. In fact, the opposite is true. Gay marriage and abortion were taboo through the first few centuries of American history. Of course this thought process may change over time, but until that happens, substantive due process should not have applied.

Scalia, at times, tried unsuccessfully to overturn precedent such as Roe v. Wade. However, many times he just sided with bad precedent (although he did not want to). For instance, he used the broad interpretation of the Commerce Clause (determined through Wickard v. Filburn) to rule on cases. Interestingly, in California Democratic Party v. Jones Scalia wrote the majority decision and in my eyes it fails to follow “one person one vote” concept held under Baker v. Carr. He sided with the Democratic Party which restricts people to only vote for candidates within their political affiliation - limiting freedom of choice. And in many cases, this primary concept refuses to allow independents the right to vote entirely.

Scalia was a principled human being. He is one of the few people to go to Washington and not try to increase his power. He insisted the power of governance should lie with the American people (equally without catering to genders and ethnicities). That in itself makes Scalia an amazing figure in politics. He will be missed because it is doubtful many more with his character will follow his footsteps.

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