20 December 2007

Scalia & the Constitution


I am writing to put forth what I believe to be a more correct view of what Justice Scalia believes to be the way the US constitution should be interpreted and applied. Specifically, I would like to address your statement that "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."

It is not that something is illegal because the US constitution does not permit it. There is no Dillon's Rule for the federal constitution. In fact, Scalia's position is more that there is a reverse Dillon's Rule applied to the constitution.

The position that Justice Scalia puts forth is that there are things which are not addressed by the constitution. They are neither constitutional nor unconstitutional; in other words, our forefathers, thru the constitution, took no stance on whether they should be allowed or disallowed. Therefore, they are not within the province of the constitutional court. They are matters for the citizens to decide, whether they decide by direct vote, or the vote of their various legislatures, or by changing the federal constitution itself (which is extremely difficult). When the court invokes its powers as the supreme constitutional arbiter, under a theory such as substantive due process, it is acting as a "superlegislature" and taking an issue forever out of the hands of the citizenry and its representatives unless they change the constitution.

It's something of the inverse function of Jacksonian Democracy: the belief that as much as possible should be decided by the citizenry or those as close as possible to the citizenry. The court should only recognize those things specifically noted in the constitution because to do otherwise thwarts the will and wisdom of the people.

Ken Lammers


Anonymous said...


Your point that what is not prohibited by the constitution is up to the legislature to decide is well said when it comes to laws enacted by the states. But remember that the federal constitution is a document that is primarily a grant of authority to the federal government. This means that the federal government is not empowered to exercise any power not explicitly provided for in the grant. Justice Scalia raises a good point that it took a constitutional amendment to guarantee women the right of vote. But it also took a constitutional amendment to enact prohibition, so the same line of reasoning explaining his VMI dissent should have caused him to dissent in Raich, for there is no more basis under the commerce or elastic clauses for congress to ban in state possession of medical marijuana than for congress to ban in state possession of alcohol. I think it is only proper that Justice Scalia consitently recognize both sides of this coin, and in the long run invalidating federal legislation that encroaches on the power of the people of each state, not just laws that violate quasi-arcane principles such as "anti-commendeering" of state officials, or states rights to sovereign immunity, but encroach on the power of the people of each state to determine which laws they want to be bound by on a day to day basis, would go a lot further in protecting the rule of the people then upholding death penalty laws or allowing the few remaining single-ed institutions to maintain their traditions.

jdgalt said...

Yes, the federal government is limited to just the powers enumerated in Article I, Section 8. Not only did the Framers promise this before ratification (in the Federalist Papers), they went on to write the Tenth Amendment, which explicitly states that that Article I, Section 8 is the complete list of federal powers.

The Ninth Amendment expands on this by spelling out that the list of things the Federal government may not do (Article I, Section 9 plus the first eight amendments) is not a complete list. Thus these two together make clear beyond all doubt that anything not covered in either list is not a federal power -- it's either a state power or an individual right.