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Source link: http://archive.mises.org/4898/antonin-scalia-unraveled/

Antonin Scalia Unraveled

April 11, 2006 by

Supreme Court Justice Antonin Scalia differs from almost every other member of the federal government inasmuch as I’ve always at least wanted to like him. I like his temperament, and his Supreme Court opinions (or even better, the dissents) are almost always a great read because they’re well written and unafraid to ridicule his colleagues’ outrageous views. He’s also great to listen to in person, if you ever have the chance.

Still, liking Scalia can be difficult. After all, anyone who’s friends with Dick Cheney can’t be all good, and probably is no good at all.

Now, via the Volokh Conspiracy, I see that Randy Barnett has made Scalia admiration even more difficult for me by publishing an evisceration of Scalia’s putative originalist credentials.

Of course, Scalia revealed himself to be a less-than-fully-committed originalist (one might charitably say) with his Raich v. Gonzales opinion, which held that Congress can regulate wholly intrastate marijuana use through the Commerce Clause. But Barnett shows that Scalia’s problems go far beyond that one case and that, in fact, Scalia has never been a true originalist. Instead, Scalia adheres to a philosophy that allows him to reach “any result he wishes,” particularly where genuine originalism would create a result that’s just too unpalatable for a conservative Republican.

Unfortunately, Barnett’s article goes off-track in trying to defend the U.S. Constitution’s “legitimacy” as he also did in his recent book (which I have critiqued here and here). But the first ten pages are must-read material for anyone interested in these issues, especially those of us occasionally tempted to admire any of our black-robed dictators in DC.

{ 9 comments }

Keith Preston April 12, 2006 at 7:00 am

When I was a campus anarchist in the late 1980s, I met a 90 year old anarchist in New York who had known Emma Goldman, Alexander Berkman and some other luminaries of classical anarchism. One bit of advice he gave me was to never trust anyone who gets paid by the state. That idea has stayed with me and has proven to be a very useful and accurate guide.

Anyone familiar with the full body of Scalia’s ideas can see that he basically just writes modern conservative Republican ideology into the Constitution. He’s every bit as much a “judicial activist” as the liberals he denounces.

Some libertarians have a fantasy about someday getting a real libertarian or two or the USSC. It will never happen. The system has a way of filtering out people who are too contrary to the state’s interests. We also need to get past all of this Constitution-worship. The Constitution is what it is: A landmark document in the evolution of political thought and the political charter of the classical American republic that has been de facto overthrown for generations. State’s rights went out the window with the Civil War and Reconstruction and the rest of the Consitution was destroyed over the course of the 20th century. The few strands that remain, like due process and free speech, are now being eradicated as well.

The US founders modeled their republic on the old Roman republic, which they knew about via Montesquieu and it’s lasted about the same amount of time before degenerating into full-blown militarism and executive dictatorship. The next wave of American revolutionaries will have to do better and draw on better models (Ireland, Iceland, HRE, classical Greece,etc.)

Luke Fitzhugh April 12, 2006 at 11:13 am

Keith: A bit of evidence for the truth of your observation that there will never be a libertarian on the U.S. Supreme Court is the recent grilling of both John Roberts and later Samuel Alito by the likes of Ted Kennedy and Chuck Schumer. Can you imagine what they and others who were supportive of Roberts and Alito would have done to a libertarian candidate?
Now Roberts and Alito are far from libertarians, but in the overall scheme of things, we could have done a lot worse.

So we continue to get evidence that the republic is doomed. For, as you mention, one cannot trust anyone that is paid by the state.

drs April 12, 2006 at 1:42 pm

Remember Dick Durbin’s screed about Janice Rodgers Brown, I don’t know if she’s a libertarian or not (probably not if she was nominated by Bush), but Durbin claimed that her ideology was that of “The Road to Serfdom and Atlas Shrugged”, which made it incompatible with “our democratic way of life” or something like that. Imagine if after some moment of clarity a future president decided to nominate Walter Block for the Supreme Court (I wonder if he’d even take it), think of the outcry.

Happy-lee April 12, 2006 at 2:26 pm

I luv Janice Brown. Scalia is a scaled down, white-washed version of Brown. Preston is correct; yet I wonder how Janice got so far? Sure, she is black, female and smart, but was that it?
(For a short review of why she is so great, visit one of her enemy’s website:
http://saveourcourts.civilrights.org/nominees/details.cfm?id=31934 )

Vince Daliessio April 12, 2006 at 3:31 pm

Happy-lee sez;

“I luv Janice Brown….(For a short review of why she is so great, visit one of her enemy’s website:
http://saveourcourts.civilrights.org/nominees/details.cfm?id=31934 )”

The enemy of my enemy is my friend.

I think all judges should be more like Judge Brown.

Stare decis is a corrupt concept. Liberals love to quote it, yet they would be appalled if one were to suggest it in cases of slavery or legalized state-sponsored discrimination.

Dennis Sperduto April 12, 2006 at 8:09 pm

“One bit of advice he gave me was to never trust anyone who gets paid by the state.”

While I would agree that there is much truth to this statement, both Mises and Rothbard would not pass this test. Mises worked for many years as an economic advisor in the Austrian government, and Rothbard spent much of his career as a professor at state universities in the U.S. Even so, as pursuers of reason and truth in the social sciences and historical research, I believe these two great men are unequaled in the twentieth century.

averros April 12, 2006 at 9:29 pm

While I would agree that there is much truth to this statement, both Mises and Rothbard would not pass this test.

That’s true, and that’s why we don’t trust them, and don’t make Authorities out of them. It is useful to learn their ideas and to apply one’s own reason to verify their logic and validate their conclusions, and don’t take what they wrote and said on trust.

I think they’d be delighted to hear that no one blindly trusts them :)

Keith April 13, 2006 at 7:46 am

“I luv Janice Brown. Scalia is a scaled down, white-washed version of Brown.”

Yeah, they’re both great, as long as you’re a heterosexual christian.

Keith Preston April 13, 2006 at 9:00 am

There’s a considerable difference from being a mere professor in a state university or a powerless economic advisor on one hand and being an enforcer of the state’s laws and decrees like a judge, police or prison adminstrator on the other just like there’s a difference between driving on a federal highway and being the CEO of Boeing on the other.

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