Antonin Scalia: I Am Spartacus

U.S. Supreme Court Justice Antonin Scalia envisions a gay flooded Colosseum. Well, not really. But he must certainly be a fan of the gladiator genre. In a recent speech in Amsterdam he criticized an opinion of the European Court of Human Rights for its vague standard to decide when homosexual activities fall within the private sphere: "Is it when five adults consent, or when they fill the Colosseum."

I'm somewhat paraphrasing, and certainly not able to transpose Scalia's rhetoric intonation of his lame joke. It was an illustration of the central point he wanted to make in his speech: judges are not the experts they are thought to be. They do not provide restrictive, workable standards through interpretation of the law. Bad lawmaking is abundant in the courts and it is done by unelected lawyers who have no more moral expertise than you or me. They do not provide neutral solutions, and if anything is to be solved it should be done in the democratic process. Judges should rely on the law as it is laid down by the people for the people and not do any re-make and re-model.

Scalia propagated, of course, the originalist approach of constitutional interpretation. I thought there where some undertones of Hart's legal philosophy in there, more natural law and procedural pragmatism than expected. But then I'm not the Hart expert, nor the Scalia. Mostly Scalia was on a roll, just a roll: rolling over Roe v. Wade, arrogantly patronizing a judge of the European Court of Human Rights ("Madam, you're not more elected than I am."), and giving a few sneers to fellow USC Judge Stephen Breyer, who, in Breyer's own words, believes in:

"an approach to constitutional interpretation that places considerable weight upon consequences-consequences valued in terms of basic constitutional purposes. It disavows a contrary constitutional approach, a more 'legalistic' approach that places too much weight upon language, history, tradition, and precedent alone while understating the importance of consequences."

Brrrr...consequences, that sounds like a real expert talking. In the Netherlands the experts, that is the Parliament, debated the same day Scalia gave his speech on electro-shocking our constitution from death to living with a new proposal of law. The current prohibition of constitutional interpretation is seen as restricting rights, healthy constitutional discussion and as an anomaly in general.

I guess Scalia wouldn't think it to be an anomaly, but then he seems from another time: when the Colosseum was filled with greasy gladiators instead of steaming gay orgies. Hxmmm... has anything changed really: sweaty muscle men stay sweaty muscle men. Oh no, that's the point, time is fixed, like the Constitution.

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At the Volokh Conspiracy a short report on, presumably, the same speech in America: Judge Scalia the Pragmatist?
More references here

At Balkinization on Antonin Scalia as Felix Franfurter
Also Balkinization: From the Blackmun Papers: The Day Roe v. Wade was Overruled
& Prequel
Dutch proposal on Constitutional interpretation (Needless to say, Dutch only)