Vol. 16 No. 4 (April, 2006), pp.289-293
ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION by Ralph A. Rossum. Lawrence: University Press of Kansas, 2006. 312 pp. Cloth $34.95. ISBN: 0-7006-1447-8.
Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin [at] mail.wvu.edu
Often a touchstone of criticism, Justice Antonin Scalia of the Supreme Court emerges largely unscathed from criticism in Ralph Rossum’s admittedly sympathetic study. Organized around the exposition of the theme of “text and tradition” articulated in Scalia’s opinions and off-the-bench commentary, Rossum’s paean presents Scalia as perhaps the most significant of contemporary justices. According to Rossum, Scalia has engaged the Court and the broader legal community in the formulation of responses to his textualism and distrust of judicial discretion.
After a brief introduction to Scalia’s career that offers nary a whiff of his sarcasm or his complicated and often testy relations with the other justices, Rossum quickly moves to outline the core of the justice’s jurisprudence. As defined in Chapter Two of the book, the central thesis of this jurisprudence is an approach that Rossum, following language in Scalia’s writings, calls “text and tradition.” Constitutional scholars familiar with Scalia’s opinions, his off-the-bench articles and speeches, and the voluminous commentary about him will readily recognize the textualist crux of this interpretive methodology. Rooted in the legal process scholarship of the 1950s, the justice’s textualism commands the judge to read the Constitution and law as narrowly and specifically as possible. The judge is not to treat language as “aspirational” or as the basis for broad declarations of rights or legislative purposes. Thus, as Rossum notes, Scalia rejects the use of information that might shed light on the objectives of a text, such as legislative history, and scorns the use of resources extraneous to American constitutionalism, such as foreign and international law.
Much of the remainder of the book is an explication of Scalia’s textualism. Chapter Three examines the justice’s separation of powers opinions. His effort to draw rigid lines to demarcate the powers of the branches is recounted. Although Rossum thoroughly exposes Scalia’s opposition to a commingling of powers, little is said about how the justice’s reading tends to diminish judicial and legislative powers and advantage the executive. Chapter Four addresses federalism, including the important negative commerce clause and state sovereign immunity opinions of the justice. In one of his few criticisms of the justice, Rossum notes that Scalia departs from textualism in the state sovereign immunity cases. Yet, he then points out that the slippage from textual practice might be a consequence of Scalia’s effort to place boundaries on Congress’s powers (pp. 125-36). [*290]
Chapter Five contains a rapid-fire review of Scalia’s textual approach to “substantive rights” protections of the First Amendment, Takings Clause, and Equal Protection Clause cases. Rossum outlines what he calls Scalia’s “no privileges, no penalties” approach to the Free Exercise Clause by an examination that focuses on the justice’s opinions in EMPLOYMENT DIVISION v. SMITH (1990) and LOCKE v. DAVEY (2004). In brief, his argument is that the Court should neither preference a religious act that violates the criminal law or imposes penalties on religious education. Turning to free speech and press and focusing the discussion on a relatively small number of opinions, Rossum notes that Scalia finds the text of the First Amendment usually restricts these rights to oral and written speech, not expressive conduct, and especially would protect only political speech through the use of a compelling interest test. In the brief treatment of Scalia’s Takings Clause cases (just over three pages), Rossum asserts that Scalia is convinced the Clause applies to regulatory as well as physical takings of space. There is little exploration of why and how Scalia has arrived at this reading of text. Finally, Rossum’s discussion of Scalia’s reading of the text of the Equal Protection Clause is also very brief. Most of the discussion is an explication of Scalia’s textual interpretations that would overturn publicly imposed affirmative action programs, require the admission of women to all-male public colleges (UNITED STATES v. VIRGINIA, 1996), and require strict scrutiny of claims of discrimination by gays and lesbians (LAWRENCE v. KANSAS, 2003). Interestingly, Rossum’s treatment of these cases tends to diminish the significance of Scalia’s quite hostile language and scorn for some of the groups claiming rights in these cases. He especially neglects to comment on Scalia’s hyperbolic dicta that imply the LAWRENCE decision might lead to nefarious results such as same-sex marriage.
The textualism of Scalia’s interpretation of procedural rights is the subject of Chapter Six. The chapter opens with a summary of the justice’s insistence that due process includes only the rights present at the adoption of the Fifth and Fourteenth Amendments (pp.166-72). Rossum argues this standard causes Scalia to reject all sorts of substantive rights, including rights to abortion, to homosexual sexual activity, to abortion, and to proportionate remedies in civil cases. Readers interested in these issues will find that Rossum does little to elaborate the arguments or comment on the dicta in Scalia’s opinions in these cases, however. Indeed, the book as a whole is quite brief in recounting Scalia’s almost visceral disgust with substantive rights in general and abortion in particular. The remainder of the chapter recounts Scalia’s textual interpretation of the rights found in Amendments Four, Five, Six, and Eight. As Rossum indicates, these opinions find Scalia siding both for and against criminal defendants – even though his overall voting pattern is generally pro-prosecution and pro-death penalty.
Quite correctly Rossum emphasizes the importance of textualist interpretive methodology by Scalia. Yet, Scalia [*291] supplements “text” with “tradition.” As Rossum notes, tradition is a kind of jurisprudential backstop when the text is ambiguous (p.27). But, what is “tradition”? Very much as in Scalia’s opinions and writings, Rossum’s definition of tradition is elusive. It might be, as he quotes Scalia, “the most fundamental, deeply felt beliefs of our society” (p.28), or just simply “accepted political norms” (Rossum quoting Scalia, p.29). But he also reads Scalia as saying it is the combined rights of the majority to rule and the protection of some rights of the minority (p.28) and the “legal traditions flowing from [the Constitution’s] text” (p.29). Despite the elusiveness of “tradition,” statements such as these give Scalia’s mode of interpreting constitutional ambiguity a Burkean flavor. In this respect, it is not surprising that Scalia rejects the more literalist and historicist varieties of original interpretation. As Rossum relates Scalia’s originalism, the justice uses original materials, such as THE FEDERALIST, less to address modern issues than to define a “traditional” constitutional structure that limits judicial power (p.47). Unfortunately, Rossum does not further explore how Scalia’s mix of tradition and structuralism clearly distinguishes him from the version of originalism offered by Clarence Thomas and the structuralism of William Brennan.
As Rossum’s chapters reveal, the application of tradition by Scalia is uncommon. However, in discussing cases in which tradition serves as a basis for Scalia’s opinions, Rossum is both uncritical about how Scalia defines a tradition and blind to the discretion that any reading of tradition implies. As Rogers Smith’s (1997) study of American citizenship reveals, it is wrong to state a single social or political tradition has existed in the United States. Likewise, the very contentiousness of American politics and constitutional interpretation over two centuries raises questions about any tradition of political or constitutional interpretation. As discussed by James Madison, the problem of majority faction raises the question of whether a majority tradition always is a truthful statement of a constitutional tradition. However, Scalia never doubts that a deep-seated moral, religious, and political consensus comprises the American social and constitutional tradition. Consequently, he finds a tradition of publicly supported religious ceremonies provides social and political evidence of a long-recognized meaning of the No Establishment Clause (pp.133-35). He does not recognize that this tradition is rooted in the inegalitarian efforts of various factional interests to enforce their religion through law, such as requiring students to read the Anglican King James translation of the Bible and the Protestant text of the Lord’s Prayer in classrooms, Catholic efforts to save financially strapped parochial schools, and evangelicals’ efforts to make America into a Biblical Promised Land. Scalia also finds a legal tradition to support a textualist reading of the Equal Protection Clause that blithely ignores the complicated historical debate about the meaning of the Clause. Neglecting such criticism of the justice, Rossum is content to argue that such constructions of tradition and Scalia’s restricted original meaning jurisprudence generally are “devoted to [*292] checking judicial discretion” (p.207). However, it can be argued that Scalia’s efforts to find and state a tradition ironically make the devotee of text and legal precision into an apostle of a discretionary choice based on unfounded generalities and law-office history. Further criticisms such as these can be lodged about how Rossum presents the value of Scalia’s jurisprudence. They obviously can lead his academic critics and supporters into unending debates about the nature and meaning of American constitutionalism. However, by reading this book, less sophisticated readers might fail to appreciate the controversies surrounding Scalia’s politics and constitution.
Two other aspects of Rossum’s book merit attention. The first is Rossum’s muting of the linkage between Scalia’s political norms and his jurisprudential practice of text and tradition. Rossum endeavors to display Scalia as “principled” or guided by interpretative norms when he makes choices. True, the instrumental choices that Scalia makes in specific cases evidence “legal” modes of interpretation. But, Rossum neglects how the justice’s instrumental choices are situated in a mindset constituted by contemporary conservative values. Scalia’s decision to read texts narrowly and often without context, the very use of tradition, and the sarcasm occasionally directed at people who do not see the world his way serves as an instrument to achieve a particular kind of America. He might claim this vision best fits a democratic society, but it also is his special version of the New Right’s constitution of American politics. By neglecting to situate the basis of Scalia’s version of American constitutionalism with New Right principles, he obscures how Scalia is both engaged in the New Right’s effort to reorient America away from the New Deal’s political vision and blind to other threats to free government. He thus undervalues Scalia’s political importance.
However, Rossum at least does recognize that Scalia’s constitution develops from the right of the people to govern themselves rather than be overruled by unelected judges (pp. 207-8) – a standard theme in anti-New Deal, anti-CAROLENE PRODUCTS footnote 4 jurisprudence. Indeed, Scalia and Rossum apparently both regard that the primary threat to democracy is unelected judges creating rights for minorities that trample on the rights of a democratic majority (p.37). Although Scalia can be faulted for inconsistency – as an unelected judge, he himself is defining that right of self-governance when he rejects legislative efforts to establish affirmative action programs, ban hate speech, or protect the environment – what is politically interesting is not just that New Right notions help constitute Scalia’s constitution, but that the object of his constitutionalism is a “problem” that is increasingly unimportant. Not only is the idea that unelected judges are a serious threat to popular democracy a little naive (as the judicial impact literature and data on public opinion and the Court suggests), perhaps the problem facing American democracy today is quite different. Perhaps the problem is not Scalia’s and Rossum’s unelected judges or the Warren Court’s concern with the oppression of minorities. [*293] Rather, it might be the overweening, extra-governmental power of global corporations, such as the big five firms that control electronic communications and the context of much political debate, that is the greatest threat to democracy. Regardless, Rossum might have better served his readers by not just situating Scalia’s text and tradition methodology in the context of the constitutional politics of the twentieth century but thinking more about how Scalia’s text and tradition jurisprudence might more broadly shape or reshape free government in response to the political threats of a new century.
Second, Rossum argues that Scalia has had a great impact on constitutional law. Although he rightly points out that Scalia has joined the other conservative justices’ effort to limit federal power and the expansion of constitutional liberties, he notes that Scalia has not formed a stable “text and tradition” majority on the Court. Rather, he has induced some of his colleagues to utilize textual interpretations and employ them on occasion. Also, Rossum claims that the inclusion of Scalia’s opinions in casebooks signifies his significance to “command the attention and engagement of the broader legal community (p.205). But, the publication of opinions in textbooks might be less a measure of influence than a reflection of the habit of instructors to offer talking points for class discussion or perhaps even to have the opportunity to dismiss Scalia. At any rate, whether attention to Scalia is a mark of respect or part of an effort to marginalize his views, it is a topic worthy of further and more extensive inquiry.
As these concerns suggest, Rossum’s effort to evaluate Antonin Scalia’s jurisprudence is open to counter-arguments on several fronts. Indeed, such argumentation is part and parcel of the practice of constitutional government and the construction of a just polity. Certainly Rossum’s capable defense of Justice Scalia encourages such argumentation, and I think that at the very least his book admirably serves a place in the American engagement in self-government.
Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven: Yale University Press.
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U.S. 872 (1990).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LOCKE v. DAVEY, 540 U.S. 712 (2004).
UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).
© Copyright 2006 by the author, Richard A. Brisbin, Jr.