"To what purpose are powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803

Thursday, July 03, 2008

Antonin Scalia takes a lot of bashing, especially in libertarian circles like this one.  But Sullum points out something:

More generally, some of the stronger libertarian attacks on Scalia obscure the fact that, from both an originalist and an anti-statist perspective, he is substantially better than the average Supreme Court justice. Although he does not consistently apply his professed principles, he does stand up for a more eclectic mix of individual rights than any other justice, with the possible exception of Clarence Thomas. For the average self-styled progressive, the fact that Scalia upholds property rights in cases involving eminent domain and regulatory takings fits the profile of a reactionary Republican, confirmed by his position on the Second Amendment. But Scalia’s wide-ranging defenses of free speech, in cases involving issues such as online “indecency,” commercial speech, campaign finance restrictions, and flag burning (which the “liberal” Justice John Paul Stevens wanted to exclude from the protection of the First Amendment), does not jibe with that stereotype.

Neither do Scalia’s defenses of the Fourth Amendment. Although he has joined the majority in whittling away at the guarantee against unreasonable searches and seizures, especially in the name of the war on drugs, he also has occasionally resisted that trend, both in the majority and in the minority.

Radley writes that Scalia “has a history of prioritizing his law-and-order instincts over his allegiance to limited government principles and originalism, as he did when he sided with the Court’s liberal justices in the medical marijuana case Gonzales v. Raich.” Joining the majority in Raich is one of the worst choices Scalia has ever made, hammering what may prove to be the final nail into the coffin of the “federalism revolution” he ostensibly supported. But Scalia’s law-and-order instincts have not prevented him from standing up for the rights of defendants, despite his reputation as pro-government. In a pair of recent cases, for example, Scalia joined Thomas in narrowly construing the federal definition of money laundering, thereby overturning two convictions. Together with Thomas, he has led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment. And in Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an “enemy combatant,” Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go.

In short, Scalia is in many ways more liberal (in the classical sense) than the allegedly liberal members of the Court, and we should not lose sight of that fact when we criticize him for his inconsistencies. On balance, I’d much rather see more justices like Scalia than more justices like Stevens.

There’s a tendency these days to throw a conniption fit anytime we don’t get exactly what we want out of our political leaders or SCOTUS justices. I’m as guilty as anyone.  Right now, as WVR documented, the libs are having a collective hissy fit because Obama is turning out not to be as radically leftist as they’d like.

But the beauty of our Constitutional system is that it acts as a great libertarian bulwark against politicians bent on “change”.  This is, in fact, why my biggest beef with the Bush Administration is their assertion of the unitary executive bullshit.

Because our government machine is carefully balanced, things in American tend to improve in slow, halting, lurching, staggering steps.  But it’s the best way for things to change in a country that is as fundamentally conservative as ours.

The Constitutional zeitgeist today is light-years better than it was just twenty years ago.  For all the kvetching about the narrowness of Heller, the idea that the Second Amendment protects an individual right is now, for the first time in 220 years, Supreme Court Precedent—something unthinkable a decade ago.  For all the bitching about Kelo and eminent domain, the fact the Court even agreed to hear the case is a step forward.  And the dreadful decision spurred a wave of property rights movements.

We’re making progress, piece by piece.  While the pending Obama Administration may set us back economically, we may make some progress on social issues and civil liberties.  And then we can toss him out and put in a free market conservative to undo the damage he’s done.