On one level, I have to agree with Justice Scalia on this point – but on another level, I think he is dead wrong.

During an appearance at Iona College, Scalia said Florida's handling of the recount, which was the key to determining whether Republican George W. Bush or Democrat Al Gore became president, was a clear violation of the Constitution's guarantee of equal protection under the law.

"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia told an audience of 700 who attended his speech at the Mulcahy Gymnasium.

Scalia, who was appointed to the court in 1986, noted that seven members of the court agreed that Florida's handling of the recount represented a violation of the equal protection clause. The controversial part of the ruling - which caused a 5-4 split on the court - was the decision that there was not enough time for Florida to develop proper standards to count the ballots.

"The whole world was laughing at the world's greatest democracy," Scalia said "They could not complete an election."

Scalia's comments about perhaps the most controversial decision of his tenure came during a brief question-and-answer period that followed his half-hour speech. He let it be known that it's time for people to stop rehashing the decision.

"It's water over the deck - get over it," Scalia said, eliciting a loud burst of laughter from the audience.

Now as a practical matter, I think that Antonin Scalia is correct – over six years after the fact, the time is long-since past for folks to let their hate and vitriol fall by the wayside. On the other hand, I think there is precedent value in this case that is important, and it therefore needs some rehashing. After all, the equal protection analysis of the case does have serious ramifications for future election cases.

There is also a comment quoted at the end of the article that I think needs to be dealt with – a comment from a young man in the audience, not Justice Scalia.

Scalia also savaged the notion of the Constitution as a living document, noting the problem with that view.

"The Constitution is not a living organism, for Pete's sake," Scalia said. "It's a legal document."

Accepting a living Constitution, Scalia said, means, in reality, giving the governing majority the ability to constantly rewrite the document to meet society's views of the day and add new rights and new governmental powers that were never intended by the authors. He warned that such a practice is not healthy for a democracy.

"Freedoms will be eliminated just as freedoms will be added," Scalia said.
The best example of the living-Constitution argument, Scalia said, is the evolving view of the 8th Amendment, which forbids cruel and unusual punishment.

At the time the Constitution was adopted, he explained, the death penalty was a commonly accepted punishment but now it is argued as unconstitutional.
Abortion, Scalia noted, is another issue that is being framed in constitutional terms when it is better handled by legislatures.

On this point, Scalia is 100% correct. Legal documents are supposed to be static, and interpreted according to the original language and intent of those who entered into the contact. After all, would you sign a mortgage or a contract that was a “living document” that evolved and changed over time in ways that you could not foresee? Of course not.

There is a process for making changes to the terms of legal documents – but it isn’t “make it up as you go along”, which often appears to be how certain justices approach some elements of the US Constitution. That is the amendment process, one which is little used and often neglected as activist judges simply recast and reconstrue the language that is already there in ways antithetical to the historical understanding and common-sense reading of the document.

And then there is this comment, made by one of the students in attendance, that I think needs to be dealt with.

"I think he was a little biased," said Josh O'Brien, a junior at Iona who is majoring in political science. "He showed a conservative bias. ... I think that as the times change, the laws also have to change."

O’Brien simply misunderstands the view that Scalia and the originalists have of the law and the Constitution. I know of no one who holds to a strict constructionist view of the Constitution who disagrees with the idea that the law must change as the times change. Where we part company with the “living document” proponents is HOW the law and the Constitution must be changed. Simply put, we believe that the process laid out in Article V should be followed. The alternative makes constitutional law the equivalent of quicksand, with no certain meaning to any provision.

UPDATE: Looks like Kennedy and O'Connor have also spoken on the case.

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

* * * O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I do have one problem with this new article, though -- while it repeatedly argues that the case was decided 5-4, that was not the case. The decision was 7-2 that the recount as conducted under the supervision of SCOFLA (Supreme Court of Florida) was unconstitutional. The 5-4 portion regarded the remedy -- whether there should be another recount or not. Unfortunately, the appropriately named SCOFLA had run the clock out in such a way as to make a recount impossible under the constitutional and statutory deadlines that existed under Florida and federal law.

Posted by: Greg at 12:03 PM | Comments (4) | Add Comment
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