Monday, September 24, 2012

Adherence to Judicial Restraint - Rehnquist vs. Scalia

By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial Department Town & Village Courts and at the Appellate Division, Third Department, and as a summer associate at Couch White, LLP.
Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.

Micky's essay is the second in the series on judicial restraint prepared for the Judicial Process Seminar, fall 2012.

Justice William Rehnquist, in discussing “The Notion of a Living Constitution,” believed that there are two susceptible meanings for its interpretation—that of Justice Holmes and that of the “brief writer.”[1] Holmes’ concept describes the Constitution as an “organism,” capable of “giving latitude to those who will later interpret the instrument to make the language applicable to cases that the framers may not have foreseen.”[2]  The “brief writer’s” connotation, on the other hand, calls for the judiciary to act “as the voice and conscience of contemporary society” by, in essence, using the Constitution as a vehicle to create law where none exists.[3]

Both definitions are ultimately addressing the parameters of judicial review—the method and means by which judges interpret and apply the Constitution.

Rehnquist was concerned that the “brief writer’s” description affords entirely too much latitude to the judiciary, thus abrogating the role of the people—who were designed to be the “ultimate source of [democratic] authority”—and replacing them with the personal viewpoints of, in many instances non-elected, judges.[4] That was not the intention the framers had in mind when drafting the Constitution, nor the people when adopting it.[5]

According to Rehnquist, expounding upon the ideals expressed by Justice John Marshall, the judicial branch should be restrained from taking action unless the Executive or Legislative branches violate the authority given them under the Constitution, or invade upon people’s civil liberties.[6] Otherwise, judges become “a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country.”[7] 

In Rehnquist’s view, such a construction would be perverse to the notion of democracy.[8]

The democratically elected government representatives would no longer serve as the voice of the people; instead, judges would create rules of law to be imposed upon a society that neither approved nor adopted them.[9]Consequently, where the “brief writer’s” position is flawed is in thinking that the Constitution must provide answers to all of society’s ails.[10]

But while the Constitution embodies a living organism—capable of adaption over time—it was designed solely for the purpose of ensuring that the respective governmental branches, “when they attempted to solve those problems, [did] not transgress the fundamental limitations” impressed upon them by the Constitution.[11]

Justice Antonin Scalia, in theorizing about the limits of judicial review, subscribes to the “’originalist’ approach to constitutional interpretation.”[12] “Originalists” believe that judges should dissect and analyze the language of the Constitution according to the meaning those words would have retained when the Constitution was adopted.[13] Like Rehnquist, Scalia also quotes Marshall in supporting his position that the meaning of the Constitution ought not to change over time. 

According to John Marshall, “the Constitution had to be interposed generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned, but also the needs that might arise in the future.”[14] Such a construction, argues Scalia, would not have been necessary if the framers intended for the Constitution to be interpreted according to changing societal values.[15]

On the surface it would appear that Rehnquist’s and Scalia’s philosophies are similar. Both believe that the role of the judiciary should be restrained from conferring powers on the Court that it was not intended to have, namely enacting or creating law.[16]

Where the two sides differ, however, is contained in their application of judicial restraint—how they interpret the Constitution. Since Rehnquist advocates for judicial deferment to the other branches of government, except in instances where their actions are clearly unconstitutional (much like the great Justice Felix Frankfurter), he encourages a broad reading of the Constitution.[17] This stance necessarily requires some leeway in the power of those branches to make law.[18]

In contrast, Scalia’s position—while claiming to construe the Constitution broadly—is ultimately limited to the historical context of the constitutional language.[19] For example, the First Amendment reads that “Congress shall make no law . . . abridging the freedom of speech.”[20] When the Constitution was adopted in 1787, “speech” would most likely have included only the written or spoken word. 

According to Scalia then, under a true “originalist” interpretation, Congress is only proscribed from ratifying laws that infringe upon a person’s right to speak freely in written or oral form in their most literal sense.[21] What “speech” would not include, however, is symbolic forms of speech, such as wearing a black armband to protest a war, Tinker v. Des Moines Independent Community School District, or burning the flag in protest, Texas v. Johnson and United States v. Eichman, or refusing to salute the American flag, West Virginia Board of Education v. Barnette—all currently recognized as “speech” protected by the First Amendment.[22] 

Interpreting the Constitution according to Scalia’s theory then would permit Congress to make any law they deem necessary, whether it infringes upon symbolic speech or not, because symbolic speech would not be “speech” within a historical context.[23] Consequently, “originalism” actually results in a very narrow interpretation of the Constitution, which ultimately leads to the contraction of protected individual rights—certainly not what the framers had in mind when drafting, nor the people in adopting, the Constitution in the wake of an oppressive English regime.

[1] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694–95 (1976).
[2] Id. at 694.
[3] Id. at 695.
[4] Id. at 696.
[5] See id.
[6] Id.
[7] Id. at 698.
[8] Id. at 706.
[9] Id. at 698.
[10] Id. at 699.
[11] Id.
[12] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862 (1989).
[13] Id. at 852.
[14] Id. at 853.
[15] Id.
[16] See id. at 854; Rehnquist, supra note 1, at 699.
[17] Rehnquist, supra note 1, at 696.
[18] See id.
[19] Scalia, supra note 11, at 852.
[20] U.S. Const. amend. I.
[21] Scalia, supra note 11, at 856–60.
[22] See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
[23] See Scalia, supra note 11, at 860–62.