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Ethan Lazuk

Elective Essay 1

Gov. & Politics, JHU

20th March 2016

The Constitutional Purism of Justice Antonin Scalia

To grasp how Justice Antonin Scalia views the legitimacy of

U.S. government power, one need simply read the Constitution with

a literalist point of view. In other words, Justice Scalia is a

Constitutional purist, and his technique for evaluating the

legitimacy of governmental power involves looking first to the

wording of the Constitution. If Justice Scalia cannot find the

solution to a question of legitimacy in the Constitution verbatim, he

next considers the writings of the Founding Fathers, the men who

were instrumental in influencing and even drafting the language of

the Constitution. Moreover, if Justice Scalia cannot find the answer

in the Federalist papers or other writings of the Founders, instead

he considers the source of much of the Founder's beliefs on

government, English Common Law. Perhaps more than Justice

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Scalia cares even for the express commands of the Constitution, he

heeds the original intent of the republican logic of the Founding

Fathers. That is to say, Justice Scalia's instinct is to interpret the

question of government legitimacy through the eyes of the Founding

Fathers. Justice Scalia does not have an allegiance to either the

citizenry or the government, however, but only to the Constitution

itself, for he is equally concerned with protecting the constitutional

powers of government as he is protecting citizens from government's

unconstitutional actions.

Concerning the legitimacy of executive power, Justice Scalia

shows equal vigor for defending the constitutional prerogatives of

the office of the president as he does for chastising the office for its

unconstitutional oversteps. Justice Scalia rises to the defense of

executive power in Morrison v. Olson, 487 U.S. 654 (1988). He

argues against congressional interference with an independent

investigation into a presidential legal advisor and subordinates

because, as a functionary of the Department of Justice, the

investigation is under the purview of the enumerated executive

powers in Article II of the Constitution:

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Is it unthinkable that the President should have such exclusive

power, even when alleged crimes by him or his close associates

are at issue? No more so than that Congress should have the

exclusive power of legislation, even when what is at issue is its

own exemption from the burdens of certain laws . . . A system of

separate and coordinate powers necessarily involves an

acceptance of exclusive power that can theoretically be abused .

. . While the separation of powers may prevent us from righting

every wrong, it does so in order to ensure that we do not lose

liberty.1

The plurality of Supreme Court justices consider Morrison v. Olson

as mainly a question of the Appointments Clause, arguing that the

appellate, as an "inferior" of the president, is immune to the whims

of executive power because of Congress's approval power over

presidential appointments. Justice Scalia sees the appellate as not

being an inferior of the president and therefore not subject to

congressional interference, but Justice Scalia is less concerned

such minutiae and is more perturbed by what he deems an

1 Page 487 U.S. 710

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unconstitutional imbalance of the separation of powers between the

legislative and executive branches as a result of the plurality's

verdict. By limiting the president's constitutional "control over the

prosecutory functions performed by the independent counsel,"

writes Scalia, the plurality "substantially affect[s] the balance of

powers."2 Concerning the Supreme Court itself, Justice Scalia is

opposed to activist rulings, which rather than passing a verdict on

the constitutionality of a case instead lead to new unconstitutional

prerogatives for legislative or executive branches of government. In

Morrison v. Olson, Justice Scalia warns the ruling is an invitation

to Congress to experiment with new powers to alter or create

unconstitutional roles for subordinates of the executive branch,

and, taking his characteristic assessment through the eyes of the

Founding Fathers, in this case James Madison in Federalist 51,

Justice Scalia argues how "the Court does not understand what the

separation of powers, what '[a]mbition . . . counteract[ing] ambition,'

Federalist No. 51, p. 322 (Madison), is all about if it does not expect

2 Page 715-716 487 U.S. 654

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Congress to try them," referring to the new powers of

experimentation awarded by the Morrison v. Olson ruling.

Although Justice Scalia defends the powers of the presidency

in Morrison v. Olson, the larger issue for him is the Supreme

Court's activist decisions, which in this case permitted Congress to

assume prerogatives that are otherwise expressly reserved by the

Constitution to the executive power. In fact, any new governmental

powers or even the transfer of constitutional powers from one

government branch to another are toxic examples of

unconstitutional Supreme Court activism that pollute the otherwise

constitutional purism that is Justice Scalia's legal mind. Justice

Scalia's constitutional purism regarding the question of government

legitimacy is elaborated further in his dissenting opinion in Hamdi

v. Rumsfeld 542 U.S. 507 (2004), a case concerning the detention

without trial of a U.S. citizen with suspected ties to the Taliban.

While Justice Scalia defended the powers of the presidency against

the Congress in Morrison v. Olson, in Hamdi v. Rumsfeld, he does

the reverse and defends legislative prerogatives against

encroachment by the executive power. In both cases, however,

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Justice Scalia relies on his characteristic fondness for the

republican principles of the Founding Fathers. In Morrison v.

Olson, Justice Scalia references James Madison's Federalist 51 to

defend the separation of powers as described in the Constitution. In

Hamdi v. Rumsfeld, Justice Scalia goes even further back in time,

referring to principles of 18th-Century English Common Law

written by Blackstone against indefinite detention without trial,

and, as Justice Scalia acknowledges, were also included verbatim

by Alexander Hamilton in Federalist 81. "The two ideas central to

Blackstone's understanding—due process as the right secured, and

habeas corpus as the instrument by which due process could be

insisted upon by a citizen illegally imprisoned—found expression in

the Constitution's Due Process and Suspension Clauses,"3 writes

Justice Scalia. Justice Scalia further demonstrates his affinity for

Founding-Father logic in his discussion of the Constitution's Due

Process Clause, which, "as understood at the founding and since,

was to force the Government to follow those common-law

procedures traditionally deemed necessary before depriving a

3 Page 3 542 U.S. 507

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person of life, liberty, or property."4 The writ of habeas corpus is a

precept of English Common Law that well predates the American

founding, explains Justice Scalia, and was used then (as now) as a

"tool for challenging executive confinement." 5 Justice Scalia

concedes that the writ of habeas corpus can be suspended if

"military exigencies" make due process of detained combatants

"impracticable,"6 but this is a prerogative of the legislature not the

executive. Article I, Section 9, Clause 2 of the Constitution provides

for the suspension of the writ of habeas corpus, explains Justice

Scalia, and even though "this provision does not state that

suspension must be effected by, or authorized by, a legislative act,

it has been so understood, consistent with English practice and the

Clause's placement in Article I."7 In the case of Hamdi's detention,

Congress neither passed a suspension of the writ of habeas corpus

nor had the president requested that Congress consider a

suspension. Hamdi had also not yet faced criminal charges despite

4 Ibid.

5 Page 4 542 U.S. 507

6 Page 8 542 U.S. 507

7 Page 9 542 U.S. 507

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his long period of detention. "[I]t is theoretically possible that the

Constitution does not require a choice between these alternatives,"

Justice Scalia writes, however, "substantial evidence does refute

that possibility." 8 In other words, Justice Scalia analyzes the

legitimacy of Hamdi's detention according to the express powers of

the government in the Constitution, but not finding a justification

in that document that applies to the present case, Justice Scalia

therefore concludes that Hamdi's detention is unconstitutional.

Unlike in Morrison v. Olson, where Congress impinged on executive

power, the president is instead impinging on legislative power in

Hamdi v. Rumsfeld by holding Mr. Hamdi in detainment without a

legal suspension of the write of habeas corpus through an act of

Congress. Furthermore, Justice Scalia recognizes a degree of

activism in the Supreme Court's affirmation of the legitimacy of

Hamdi's detention, applying a "Mr. Fix-it Mentality." "It is not the

habeas court's function to make illegal detention legal by supplying

a process that the Government could have provided, but chose not

to,"9 writes Justice Scalia. And without a suspension of the writ of 8 Page 11 542 U.S. 507

9 Page 24 542 U.S. 507

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habeas corpus from Congress, the executive has two constitutional

options left: to hand Hamdi over to the criminal authorities for

prosecution or to release him.

The constitutional purism of Justice Scalia permits him to

argue for congressional powers (Hamdi v. Rumsfeld), executive

powers (Morrison v. Olson), and all the time against Supreme Court

activism. In terms of government legitimacy, therefore, Justice

Scalia's mind is guided only by his firm commitment to the words of

the Constitution and the original intents of the republican Founding

Fathers who conceived them. All government prerogatives expressly

provided for in the Constitution are legitimate, according to Justice

Scalia, but any government powers not contained in the

Constitution are illegitimate. Although he is a lifetime judicial

servant supposedly beyond the reach of partisan politics, Justice

Scalia is still a political appointee of a Republican president. On a

political spectrum, Justice Scalia's strict constitutionalism and

disdain for judicial activism would place him nearest to

libertarianism. Justice Scalia is not guided by his political

alignment, however, nor does he hold a commitment to the

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Republican Party that brought him to power. A testament to the

supreme objectivity of Justice Scalia's constitutional purism is his

dissenting opinion in Prado Navarette v. California U.S. 572 (2014),

when Justice Scalia joins with the three more liberal justices to

oppose an unconstitutional search and seizure. Mr. Navarette was

pulled over by California officers on suspicion of drunk driving, but

the suspicion came via an anonymous 911-phone call, and the

officers observed no cues of drunk driver during five minutes of

observation time on the highway. The fact that Mr. Navarette's Ford

F-150 truck bed contained bulk packages of Cannabis is irrelevant

in the mind of Justice Scalia, for he simply maintains, "the Fourth

Amendment requires that [Navarette] be left alone."10 No matter the

circumstances at hand—from detained combatants from the war on

terror to alleged drug dealers to deceptive legal advisors of the

president—the only concern for Justice Scalia when considering

government legitimacy is whether the government's actions are

within or without the express powers given to it by the Constitution.

10 Page 10 572 U.S.

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Sources

Hamdi v. Rumsfeld (03-6696) 542 U.S. 507 (2004). Cornell

University Law School. Legal Information Institute. Accessed

by: https://www.law.cornell.edu/supct/html/03-

6696.ZO.html

Morrison v. Olson (No. 87-1279) 487 U.S. 654 (1988). Justia. U.S.

Supreme Court. Accessed by:

https://supreme.justia.com/cases/federal/us/487/654/

Prado Navarette v. California (12–9490) 572 U.S. (2014). Cornell

University Law School. Legal Information Institute. Accessed

by: https://www.law.cornell.edu/supremecourt/text/12-9490