Correcting Ken: More On Scalia & the Constitution

Mr Rozenberg, the author of the article I linked to in the last post, was kind enough to send me an email in reply. In pertinent part, it said, "I am sure you are right in your assessment of Justice Scalia's position: my only quibble is that I thought that was precisely what I reported him as having said."

I went back and reread the entire article and I'm now going to do something rare for a blog - I'm going to say mea culpa. Rereading the entire article, he did go thru most every point that I touched upon (if not all of them). My problem was that I got tunnel vision in the second to last paragraph and sat down to answer what I read therein.

Mr. Rozenberg has just stated that he is dubious of Scalia's Jacksonian declaration that his Harvard education and legal experience do not make him more qualified to make moral decisions than the average citizen. Then comes the curious sentence which I've read several times, becoming less certain of its meaning with every reading.

I would rather have a reasoned opinion from Justice Scalia than a bald assertion that something is illegal simply because the Founding Fathers had never specifically permitted it.

I believe he means that he would like Scalia to look to the equities of the case at bar rather than restricting his decision to whether the case is one which should be decided by a constitutional court and how much power the constitution grants. However, I apply this meaning to the sentence after rereading the last three paragraphs a few times and taking Mr. Rosenberg's email into account. Mr. Rosenberg should roll up a newspaper, walk over to his editor, and wop him upside the head. Anyone who writes much knows they will write a hard to understand sentence once in a while, but Mr. Rosenberg has the right to rely on his editor to catch such a thing.

1) Scalia's known for his intelligent writing. However, the tone he has adopted overshadows this and, while making him a favorite among the true believers, has limited his ability to persuade others.

2) The federal supreme court decides if things are unconstitutional, not whether they are illegal. Things can be illegal and still be constitutional. This is part of the argument in Moore which will be argued January 14, 2008.

3) Things aren't ever illegal/unconstitutional because the Founding Fathers never specifically permitted them. As I said yesterday, there is no Dillon's Rule for the federal constitution.