Magazine article First Things; A Monthly Journal of Religion and Public Life

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Magazine article First Things; A Monthly Journal of Religion and Public Life

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Article excerpt

Text Before Subtext SCALIA DISSENTS: WRITINGS OF THE SUPREME COURT'S WITTIEST, MOST OUTSPOKEN JUSTICE Edited by KEVTN A. RING Regnery. 256pp. $45.90.

DURING HIS ALMOST twenty-year tenure on the United States Supreme Court, Justice Antonin Scalia has led a continuous assault on judicial tinkering. The rule of law, he has argued, demands that we be bound by the text of the law-not by evolving social standards, not even by some elusive authorial intent, but by the actual words of the Constitution and of the statutes passed by state and federal legislatures.

Scalia has articulated this textualist philosophy in his frequent public lectures, in his penetrating book A Matter of Interpretation, and in his many Supreme Court opinions. In Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice, attorney Kevin A. Ring collects some of the most memorable of these opinions. The stated aim of this volume is to bring to a wider audience "some of the most noteworthy, colorful, and entertaining opinions ever written by a United States Supreme Court Justice." More important, the collection traces the development of Scalia's view-derided by progressive law professors and controversial even among conservatives-that, in Ring's words, "laws-and especially that supreme law known as the Constitution of the United States-say what they mean and mean what they say."

Appointed in 1986, Scalia has been on the Court long enough to have tackled virtually every important legal issue of our day: abortion, religious liberty, race and gender equality, gay rights, and separation of powers, among others. The opinions collected here-some dissenting from the majority of the Court, others concurring in judgment but rejecting the majority's reasoning-show how Scalia applies his textualism to these issues, and how it differs from competing theories of interpretation, most notably the "living Constitution" view favored by many on the left and the varieties of intentionalism favored by many conservatives and moderates. The collection confirms Scalia's reputation as a trenchant critic of judicial arrogance and as a dogged defender of the Constitution as it was originally understood.

In Scalia's view, the Court has for a half-century indulged in one project of social engineering after another, purporting to find an assortment of previously unknown rights squirreled away beneath the visible surface of the Constitution. The Court's fondness for "legislating from the bench," as some describe it, reached a crescendo in 1973, when the majority declared a constitutionally protected right to abortion, thereby invalidating statutes in forty-six states and establishing itself as the sole arbiter of the nation's abortion laws. While some have suggested that the Court has reined in its activist tendencies over the years-and there have indeed been heartening signs, such as the elevation of William Rehnquist, a dissenter in Roe v. Wade (1973), to the position of Chief Justice the same year Scalia joined the bench-Scalia's recent opinions remind us that these tendencies often prevail.

Less than two years ago, for example, the Supreme Court ruled in Lawrence v. Texas (2003) that laws prohibiting sodomy are unconstitutional, citing the same privacy protections it used to justify its decision in Roe. While the Lawrence decision came as no great surprise, the rationale expressed in Justice Anthony Kennedy's majority opinion is unexpectedly sweeping in its implications. In an explosive dissent, which Ring includes, Scalia excoriates Kennedy for his contention that enforcement of a majority's moral beliefs does not advance any legitimate state interest. Scalia writes:

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. . . . State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of [the Court's previous] validation of laws based on moral choices. …

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