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Tuesday, March 15, 2005


scalia and majoritarianism

antonin scalia's neoconservative position was expressed again yesterday in declaiming the supreme court's decision to strike down juvenile execution.

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.
scalia's position is marked out by his previous assertions on the role of the judiciary, as exemplified in this amicus brief which cites scalia:

Over the last decade, the Court has dramatically revised the law of standing to limit citizens' ability to sue in federal court to enforce federal environmental laws. This transformation has been based on the idea that those asserting a "majoritarian" interest in environmental protection neither require nor are entitled to regular access to the courts, whereas minority regulated interests need and should routinely be granted access to the courts to challenge the application of the environmental laws to them.

The basic rationale for the Court's recent environmental standing decisions is expressed most articulately by Justice Scalia, writing for the Court in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). He explained the distinction between those interests which should be denied standing and those which should be granted standing in terms of whether the plaintiff is the object, or the intended beneficiary, of a law or regulation. Standing, he said, "depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed." Id. at 561-62 (emphasis in original). While the quoted language is from the opinion of the Court, it is uncertain, in view of the separate concurring opinion by Justice Kennedy (joined by Justice Souter), see 504 U.S. at 579-81, whether a majority of the Court actually subscribed to this part of the majority opinion. See also id. at 579 (expressing agreement only with "the essential parts of the Court's analysis").

Justice (then Judge) Scalia developed this theory of the distinction between beneficiaries and objects of regulation in a 1983 article in the Suffolk University Law Review. See The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L.Rev. 881 (1983). Judge Scalia argued that standing doctrine needed to be revised, in his words, to "restrict[ ] courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and [to] exclud[e] them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself." Id. at 894.

Judge Scalia contended that when a claim is brought by an individual who is "the very object of a law's requirement or prohibition," then the plaintiff will "always" have standing. Id. at 894 (emphasis in original). In that circumstance, the claim presents a "classic case of the law bearing down upon the individual himself, and the court will not pause to inquire whether the grievance is a 'generalized' one." Id. On the other hand, using language almost identical to that which appeared in Lujan, when the plaintiff "is complaining of an agency's unlawful failure to impose a requirement or prohibition upon someone else," standing should be much more difficult to establish. Id. at 894 (emphasis in original). A legal challenge based on non-enforcement of the law asserts an essentially majoritarian interest, Judge Scalia reasoned, which should ordinarily be addressed, not by the courts, but by the majoritarian branches - the Congress or the Executive. A plaintiff with a majoritarian interest should be recognized as having standing only if he can demonstrate that non-enforcement of the law resulted in some special and distinctive harm to him. Id. at 894-95.

Over the last decade, the Court's major environmental standing decisions, all of which have been authored by Justice Scalia, have progressively implemented this anti-majoritarian theory of standing.
the obvious answer, of course, to the question, "Why in the world would you have it interpreted by nine lawyers?", is that the people are paranoid idiots and panicky animals who wouldn't hesitate under the proper influence to back laws constructing death camps for muslims or authorize a nuclear first-strike on china. but the neoconservative religious belief in the rousseauian concept of ultimate moral authority in populism -- the will of the people being a universal good -- makes little allowance for the rights of the minority where such obstacles contradict the expressed will of the majority.

this is majoritarianism, or plebiscitarianism, and it is the naked advocacy of mob rule. we've seen it before in the neoconservative views of government and the function of institutions, which apply to both the senate and the supreme court.

as a student of the history of law, scalia is well aware that the constitution designed a government which sought balance between and limits upon both the proletariat and the elite -- that while a government may derive its authority from the people it governs, the expression of the will of the people is to be abrogated by the rule of law and morality. as was expressed by alexander hamilton in the federalist letters,

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
james madison further evidenced healthy skepticism of the intelligence of crowds in another federalist letter:

It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand.

On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed.
madison went to some lengths to differentiate between a republic and a democracy, and the favorability of the former to the latter. but scalia's philosophical advocacy is apparently that the balance should be abandoned for the unmitigated implementation of the will of the lowest common denominator through the vehicles of congress and the administration -- and, for many neoconservatives, primarily the latter -- circumscribing the authority of the courts and the law under the revisionist, primitivist rubric of popular constitutionalism.

scalia, in an somewhat duplicitous effort to forward this ideological agenda, presents a fraudulent notion of what the supreme court is intended to be. the founders understood very well that the court was a powerful political entity and that it existed beyond the reach of the people. that it is is testament to the founders valid caution of plebiscitarianism and the ease with which a rabble can be incited to violate the rights of the minority; it is to be hoped that the court provides a check against the people as insurance against majoritarianism.

unfortunately, scalia apparently expresses no caution regarding the crowd -- and has accordingly attempted to diminish the role of the "undemocratic" courts in public life. when he says "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it," what he leaves unsaid is more important -- for example, "you think restrictions of political speech for unamerican liberals are a good idea? persuade your fellow citizens and enact it" -- implying throughout that the court cannot stand in the way of the will of the people on any but the most limited issues. the idea may sound ridiculous to many; but the history of mankind shows that the crowd, when scared or manipulated, is capable of demanding the most egregious atrocities be committed in the name of the common good. it is this capacity for atrocity that scalia, wittingly or not, implicitly wishes to enable.

but there is, of course, an underlying duplicity of rich irony -- scalia cannot brook the scrutiny of the press, even if it means breaking the law he is sworn to uphold.

Scalia, who has had a prickly relationship with the media, wasted no time in shooing away photographers from the public event five minutes into his speech.

"Could we stop the cameras? I thought I announced ... a couple are fine at first, but click click click click," Scalia said, impatiently waving the photographers off.

During a speech last year in Hattiesburg, Miss., a deputy federal marshal demanded that an Associated Press reporter and another journalist erase recordings of the justice's remarks.

The justice later apologized. The government conceded that the U.S. Marshals Service violated federal law in the confrontation and said the reporters and their employers were each entitled to $1,000 in damages and attorneys' fees.
and why? i suspect because he is convinced on some level that his will is the will of the people -- and that the will of those who examine him and criticize him and disagree with him is therefore the will of the enemies of the people and therefore evil -- even if their views have the benefit of the rule of law. it is precisely this conflation about which hamilton warned,

The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
and in this, of course, he has much in common with another passionate follower of rousseau -- robespierre.

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