Myles McCormick
Last Thursday saw Antonin Scalia, Senior Associate Justice of the US Supreme Court visit Trinity. Having gained a certain notoriety as the man who put George Bush in the White House, Scalia is no stranger to controversy. Thus, it was unsurprising that the Ed Burke was filled to the brim.
Unfortunately for some, who were hoping to be entertained by the ravings of an extremist, rightwing, Bible-touting, gay bashing, red necked nut, Scalia came across as a rational, reasonable, if somewhat abrasive, intellectual.
The speech was, as expected, of a legalistic nature. It was entitled ‘Mullahs of the West’ (it is Google-able, for those of you with a thirst for some Conservative US legal opinion) and was centred on the idea of judges acting as ‘moral arbiters’.
Moral issues, he insisted, will always divide people and the only fair way to legislate upon them in a democratic state is to allow the people debate the issue through their elected representatives and decide on what the majority sees as ‘right’.
However, judges appear to have ever increasing strength in this area, in that they alone can decide what is constitutional. And when the constitution, as is often the case, is less than clear on certain issues, their capacity as interpreters grants them, to some degree at least, the role of ‘moral arbiter’. But how can they adjudicate on questions that have no scientific answer?
“Even if there were scientifically “right” answers,” he asserted, “There would be no reason to believe that law-trained professionals can discern them more readily than, say, medical doctors or engineers or ethicists or even the fabled ‘Joe Six-Pack’.”
Scalia is what is known in legalistic terminology as an originalist, in that he feels that constitutions should be interpreted as they were written. He disapproves of the idea of a “living constitution”, evolving on the whims of the Supreme Court of the day. As far as he is concerned, the US Constitution should be interpreted as it was written by America’s Founding Fathers – which leaves little-to-no question as to the legality of many major issues:
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“Surely it is obvious that nothing I learned in my law courses at Harvard Law School, none of the experience I acquired practicing law, qualifies me to decide whether there ought to be a fundamental right to abortion or to assisted suicide.”
Under a regime of static law, it was not difficult to decide whether, under the American Constitution, there was a right to abortion, or to homosexual conduct, or to assisted suicide. When the Constitution was adopted, all those acts were criminal throughout the United States”.
These laws could, he was quick to point out, be changed by amendments to the Constitution and statutes from the legislature. But for judges to have the power reinterpret the Constitution in order to define what falls within the bounds of modern morality is simply wrong.
“Surely it is obvious that nothing I learned in my law courses at Harvard Law School, none of the experience I acquired practicing law, qualifies me to decide whether there ought to be a fundamental right to abortion or to assisted suicide.”
At the end of the day, failing a reversion to an originalist interpretation of the Constitution, he believes this power must be curtailed by the political system: “It will prove impossible to take politics out of the year-by-year refashioning of society’s official views on human rights.”
In America, he sees this truth as manifesting itself in the politicisation of Supreme Court nominations. In order to be approved by Congress, the judges must have views that are broadly in line with those of the electorate. Otherwise the people’s representatives, hungry for re-election, will not put allow such nominees become Supreme Court Justices.
Europe, though, is a different kettle of fish. Judges at the European Constitutional Courts and European Court of Human Rights are politically unchecked. We will follow suit on this side of the pond, Scalia predicted. When and how is anyone’s guess.
Ultimately, if the Constitution is to be viewed as living, Scalia insisted, then the views of the majority should be mirrored in the Supreme Court.
But at the same time, the courts cannot allow popular opinion influence their judgements. They must have the courage to interpret the Constitution truthfully, to “…stop the majority doing whatever it wants – that’s why the Constitution’s there.” And this may be unpopular. He cited his ruling against a law prohibiting flag burning. Although he didn’t agree with the practise – “probably a bunch of bearded, sandal-wearing, hippie-types that were doing it anyway” – the Constitution granted people the right to freedom of speech, and that had to be upheld.
Obviously there are views contrary to those of Scalia. But, the points he made all seemed to ring true. Then again, you wouldn’t really expect anything less from one of the world’s most brilliant legal minds.
