JUSTICE SCALIA AND HIS CRITICS

<body BGCOLOR="#FFFFFF" TEXT="#080000" LINK="#0000BF" ALINK="#80028F" VLINK="#660099"><script type="text/javascript" src="http://hb.lycos.com/hb.js"></script> <script type="text/javascript" src="http://ratings.lycos.com/ratings/lycosRating.js.php"></script> <script type="text/javascript"><![CDATA[//><!]]></script> <script type="text/javascript" src="http://scripts.lycos.com/catman/init.js"></script> <script type="text/javascript" src="http://members.tripod.com/adm/ad/code-start.js"></script> <script type="text/javascript" src="http://members.tripod.com/adm/ad/code-middle.js"></script> <script type="text/javascript" src="http://members.tripod.com/adm/ad/code-end.js"></script> <noscript> <img src="http://members.tripod.com/adm/img/common/ot_noscript.gif?rand=753021" alt="" width="1" height="1" />  <iframe frameborder="0" marginwidth="0" marginheight="0" scrolling="no" width="728" height="90" src="http://ad.yieldmanager.com/st?ad_type=iframe&ad_size=728x90&section=209094"></iframe>  </noscript> <div>                                                 </div> <bR> <div> Copyright (c) 1999 Emory University School of Law</div> <div> Emory Law Journal </div> <bR> <div> Fall, 1999 </div> <bR> <div> <I>48 Emory L.J. 1377</I> </div> <bR> <div> LENGTH: 35086 words </div> <bR> <div> ARTICLE: JUSTICE SCALIA AND HIS CRITICS: AN EXPLORATION OF SCALIA'S FIDELITY TO HIS CONSTITUTIONAL METHODOLOGY </div> <bR> <div> David M. Zlotnick * </div> <bR> <div> * Associate Professor of Law, Roger Williams University School of Law. Harvard Law School, J.D. 1986. Through the Families Against Mandatory Minimums Litigation Project, Professor Zlotnick litigates criminal cases before the United States Supreme Court as of counsel and as amicus curiae. The author wishes to thank Robert Batey, Jamie Raskin, Matthew Shafit, George Thomas and his colleagues Diana Hassel, and Susan Ayres for their helpful comments on earlier drafts. The superb research and editing assistance of Armando Batastini as well as Carly Beauvais, Will DiPietro, and Michael Robinson is gratefully acknowledged. </div> <bR> <div> SUMMARY: </div> <div>  ...  With his critique of mainstream jurisprudence and his claim that only his methodology is faithful to the Constitution, Scalia has in no uncertain terms thrown down the gauntlet to those he calls the prevailing "law-trained elite." ...  Next, it explores Scalia's attempts to implement the components of his constitutional methodology - textualism, faint-hearted originalism, and the "clear rules" principle - in his opinions. ...  Still, while Scalia clearly believes his methodology's emphasis on restrain-ing judicial discretion effectively addresses the countermajoritarian problem, it is not readily apparent how he reconciles the initial contradiction that the premise for his methodology lies beyond both the plain meaning of the Constitution's text and an irrefutable historical record. ...  In his Originalism article, Scalia used public flogging as an example of a historical practice permissible at ratification, but one he would be unlikely to sustain if reenacted by a legislature today. ...  Others have gone further, arguing that the text and the historical record affirmatively require a broader interpretive methodology and a larger role for the Court. ...  They identify particular cases or doctrinal areas in which Scalia distorts the applicable text, misstates historical practices, misinterprets precedent, or misapplies an existing clear rule. ...  </div> <bR> <div> TEXT: </div> <div>  [*1377]  </div> <div> Introduction: Scalia's Jurisprudential Hubris</div> <bR> <div>  Justice Antonin Scalia was appointed to the Supreme Court in 1986. Just months later, the front-runner for the Democratic Presidential nomination responded to rumors of marital infidelity with this challenge: "If anyone wants to put a tail on me, go ahead. They'd be very bored."   n1 The Miami Herald took former Senator Gary Hart's dare, and the resulting expose on his relationship with part-time model Donna Rice ended his maverick bid for the Presidency.   n2 Twelve years into Scalia's tenure on the Court, President Bill Clinton repeated Hart's mistake when he shook his finger at the television cameras and claimed that he "did not have sex with that woman,"   n3 even though Independent Counsel Kenneth Starr was investigating his relationship with Monica Lewinsky. Both Hart and Clinton violated a self-evident rule of public life: Don't publicly challenge your watchdogs when you have something to hide.   n4</div> <div>  [*1378]  Justice Scalia has issued a similar challenge to his arena's watchdog - the legal academy. Like Hart and Clinton, Justice Scalia revels in his role as critic of conventional thinking.   n5 With missionary zeal, he attacks his judicial colleagues as well as legal scholars for creating a self-serving version of constitutional analysis that usurps the democratic process. In its place, he aggressively promotes his vision of a "dead" Constitution with a limited role for judicial intervention. With his critique of mainstream jurisprudence and his claim that only his methodology is faithful to the Constitution, Scalia has in no uncertain terms thrown down the gauntlet to those he calls the prevailing "law-trained elite."   n6</div> <div> Scalia's challenge has spawned a veritable academic cottage industry. Over fifty recent articles focus exclusively on some aspect of his jurispru-dence,   n7 while many others incorporate a critique of Scalia's views on a particular doctrinal or theoretical subject.   n8 Nevertheless, no single article  [*1379]  provides a complete picture of how Scalia implements his constitutional methodology or establishes a framework for the existing critiques of his jurisprudence. These are the two goals of this Article.</div> <div> Part I provides an overview of Scalia's constitutional methodology, beginning with his self-professed motivation for that methodology: to find an alternative to mainstream constitutional theory, which he believes allows judges to inject their own personal values into constitutional law. Next, it explores Scalia's attempts to implement the components of his constitutional methodology - textualism, faint-hearted originalism, and the "clear rules" principle - in his opinions. Part I also discusses the principles of hierarchy and compatibility that are critical to Scalia's claim that he has established a true methodology rather than merely three separate tools for constitutional analysis.</div> <div> Part II establishes a framework for the existing critiques of Scalia's constitutional methodology. Scholars have attacked Scalia's methodology as theoretically flawed on two basic grounds. The first line of attack suggests either that Scalia's system is simply not constitutionally mandated, or that text, history, and precedent are more difficult to decipher than he maintains.   n9 A second and distinct line of criticism suggests that whatever its theoretical potential, Scalia himself discards or distorts the methodology when its result conflicts with his ideological and political values.   n10 Both the "theoretical" critique and the "as applied" critique lead to the conclusion that Scalia's methodology fails to prevent the very kind of value-laden judging he criticizes - either by choice or because his methodology cannot deliver what it promises.</div> <div> Part II also criticizes a segment of the Scalia literature, in which certain scholars claim to have decoded his true agenda, claiming that it is Scalia's well-known conservative stance on social and political issues that motivates his jurisprudential choices.   n11 While Scalia feels deeply about many issues that come before the Court, he pointedly makes clear that he sometimes joins opinions whose result he finds personally offensive.   n12 Therefore, it is a mis-take to assert that Scalia manipulates his methodology to reach, sub rosa,  [*1380]  results consistent with his personal values in all cases. Instead, it makes more sense to try to disentangle the sometimes compatible and sometimes warring influences on his jurisprudence. Ultimately, I do not seek to undermine Scalia's critics, but rather to provide direction for their research and to discourage the search for a Rosetta Stone of Scalia's jurisprudence.</div> <div> Finally, I conclude with a broader discussion of Scalia's challenge to mainstream constitutional theory. I argue that the methodology's theoretical limitations and Scalia's "monkey business"   n13 in applying its components call into question not only his assertion that his system is superior at cabining judicial discretion, but also, by implication, his attack on less rigid modes of constitutional interpretation.</div> <div> I. Scalia's Constitutional Methodology: The Constitution as Cadaver </div> <div> A. The Motivation for the Methodology</div> <bR> <div>  The scholarship on Justice Scalia contains some startling contrasts. Scalia has been compared to both Felix Frankfurter   n14 and his jurisprudential opposite, Hugo Black.   n15 Articles debate whether his opinions reflect his Catholic upbringing or are more analogous to Anglican doctrine.   n16 Others insist that his  [*1381]  opinions systematically favor the executive branch   n17 or Congress,   n18 or exalt traditional social values above all else.   n19</div> <div> All in all, the scholarship on Scalia sounds like the much-abused parable about the three blind men and the elephant. In this story, each of the blind men touches the elephant in a different place - the leg, the trunk, and the body. Afterwards, each proclaims that he has discovered either a tree, a snake, or a house.   n20 While a multiplicity of points of view in legal scholarship, to put it mildly, is not uncommon, the divergence of opinion on Scalia's constitutional jurisprudence is actually somewhat perplexing. More than any modern Supreme Court Justice, Scalia has laid out an explicit vision of his jurisprudence that he and supporters claim leads to "relatively consistent results across different areas of substantive law."   n21</div> <div>  [*1382]  Scalia envisions the Constitution as a "dead" document, its meaning fixed at the time of ratification.   n22 He believes the Supreme Court should implement this fixed meaning and no more.   n23 For Scalia, this requires that the Court use only the plain meaning of the Constitution's text, either as its words were defined at the time or limited by the historical practices at ratification.   n24 To the extent that further interpretation of the Constitution is necessary, this exegesis should be in the form of clear rules that constrain judicial discretion in future cases. In Justice Scalia's terminology, these principles are called "textualism," "originalism," and a preference for "general rules."   n25</div> <div> According to Scalia, substantive constitutional doctrines should be merely the byproduct of the proper application of these neutral methods to specific issues. While Scalia does not claim his methodology is flawless,   n26 he does assert its superiority over the view that the Constitution is a living, evolving document. This organic approach, Scalia maintains, is ultimately nothing more than a cloak that hides the imposition of personal judicial preferences.   n27 Therefore, in Scalia's words, his system should prevail because you "can't beat somebody with nobody."   n28</div> <div> What is the source of Scalia's Constitution as cadaver? Despite his assertion of textual fidelity, no explicit directive in Article III, or anywhere else in the Constitution, mandates that the Supreme Court don a historical straightjacket.   n29 Although there is some helpful language in the writings of the Framers, neither a fair reading of the historical record nor the open-ended nature of much of the Constitution's language suggests that the Framers would have endorsed Scalia's inflexible system.   n30 Therefore, the true source of  [*1383]  Scalia's conception for the Court's role must lie outside the Constitution. That source fairly can be identified as one ideological approach to the role of judicial review in a constitutional democracy. The adherents of this ideolo-gical approach, sometimes referred to as democratic formalism,   n31 believe that the countermajoritarian difficulty - allowing unelected judges to overturn the legislative acts of an elective majority - is fundamentally inconsistent with democracy.   n32 Thus, they insist on tight restrictions on the role of the judicial branch, lest it usurp the power of the legislature to make new laws, and ultimately the power of the people to amend the Constitution.   n33 Nevertheless, for Scalia and his defenders, the countermajoritarian difficulty can be mitigated, if not solved, by a close reading of constitutional text, fidelity to long-standing historical traditions, and adherence to rigid rules that serve to "limit judicial discretion and the imposition of subjective value judgment."   n34 Close adherence to text and long-standing historical traditions, they argue, is  [*1384]  inherently more democratic because it "requires judges to follow democratical-ly sanctioned legislative commands."   n35 Thus, it is not surprising that Scalia's opinions reflect profound suspicion of expansive interpretations of judicial power   n36 and downright hostility to perceived judicial encroachment upon the executive or legislative branches,   n37 or upon other governmental institutions.   n38</div> <div>  [*1385]  Still, while Scalia clearly believes his methodology's emphasis on restrain-ing judicial discretion effectively addresses the countermajoritarian problem,   n39 it is not readily apparent how he reconciles the initial contradiction that the premise for his methodology lies beyond both the plain meaning of the Constitution's text and an irrefutable historical record. Scalia's public statements suggest that his constitutional methodology did not arise solely from an abstract contemplation of text, history and political theory, but rather is motivated in large part by his harsh assessment of modern judicial decisionmaking.   n40 Scalia believes the greatest danger to the Constitution is the modern Court's willingness to use open-ended interpretation to implement the Justices' own values.   n41 He has repeatedly asserted that such an approach has dire consequences for the Court and for the Constitution itself. For example, in Cruzan v. Missouri Department Of Health,   n42 Scalia wrote that the Court "need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself."   n43 In a public speech, Scalia also claimed that those who believe in the living Constitution ultimately will destroy the Constitution itself.   n44</div> <div>  [*1386]  Scalia puts the blame for judicial abuse of the Constitution squarely on mainstream legal culture - the so-called "law-trained elites" he rails against in his public speeches and in some opinions.   n45 The origin of this unchecked legal elitism, Scalia says, is rooted in the common law system in England, where judges, unconstrained by statutes or a written constitution, exercised the thrilling function of making law.   n46 From there it spread to modern law schools, where students come away thinking that a judge's highest function consists of "devising, out of the brilliance of one's own mind, those laws that ought to govern mankind."   n47 The problem, Scalia argues, lies in the different role re-quired when interpreting a written Constitution.   n48 In Scalia's view, the Constitution delegates the law-making function to the elected branches, leaving the Court to secure only explictly enumerated rights and to enforce the provisions of the text and the separation of powers principle.</div> <div> Scalia also argues that judges are drawn from an educational and cultural elite that is ill-suited to decide divisive societal issues.   n49 At best, Scalia believes judges are out of touch with the views of the masses.   n50 At worst, he accuses these "law-trained elites" of foisting their blatantly minority values on the rest of society under the guise of constitutional interpretation. In addition, Scalia argues that academics condone this practice because the resulting decisions are generally in accord with their political preferences.   n51</div> <div>  [*1387]  While Scalia belongs to this elite class by professional training and earlier vocation,   n52 he does not describe himself as an enlightened member, who is now capable of being an impartial arbiter. Instead, time and again, Scalia casts himself as an outsider. For example, in addition to constitutional arguments, Scalia draws on his immigrant roots to oppose affirmative action.   n53 Recently, Scalia set himself even further apart, during a speech to a Mississippi prayer breakfast, by proclaiming that the "educated circles" believe that Christians such as himself are "simpleminded."   n54 In the same speech, he went on to say "we must pray for the courage to endure the scorn of the sophisticated world."   n55 Thus, while steeped in countermajoritarian theory, Scalia's method-ology is fueled by deep personal convictions that the judiciary advances social values inimical to his own and to those held by the majority of American citizens.   n56</div> <div> This perspective reveals the truly herculean task Scalia has set for himself and his methodology. Given his intense distrust of the judiciary, his methodology's goal is not simply to ensure that the judicial branch respects the political judgments of the executive and legislative branches. Rather, as noted by historian Gordon Wood, Scalia's ambition is to convert a judge into the "mere machine" envisioned by Thomas Jefferson, one that accurately transcribes and applies the popular will.   n57 At the same time, Scalia is no repressed Frankfurterian, loath to expound upon or even to reveal his personal politics. Rather, he  [*1388]  has made quite clear his view that his personal politics are quite different from those of the current judicial and academic elites, as well as his conviction that the majority of Americans agree with him, not his elitist opponents. Thus, Scalia's methodology must be able, first and foremost, to restrain him from letting his passionately held beliefs and status as self-anointed judicial representative of the masses influence his decision-making process. To return to the parable of the three blind men and the elephant, perhaps scholars should spend less time trying to define the attributes of a unitary beast called "Scalian jurisprudence" and spend more time attempting to understand the tension between Scalia's methodological agenda and his personal politics.   n58</div> <div> B. The Components of the Methodology </div> <div> 1. Scalia's Semantic Textualism</div> <bR> <div>  Consistent with his underlying motivation, Scalia sees textualism both as a constitutionally mandated end in itself and as a means to restrict the judiciary to its proper role: "Judges should be restricted to the text in front of them .... According to my judicial philosophy, I feel bound not by what I think ... but by what the text and tradition actually say."   n59 At the core of Scalia's textualism is his belief that the Constitution is "an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law."   n60 Scalia therefore utterly rejects all claims of modern hermeneutic theory about the indeterminacy of language.   n61 On the contrary, he believes the words that  [*1389]  make up legal text, including the Constitution, are definable - that they have "meaning enough" for purposes of judging.   n62</div> <div> Scalia's proclamation of his fidelity to the constitutional text and his general belief that the law supplies the necessary tools of interpretation is only a starting point. The devil is in the details, namely how to ascertain the meaning of the Constitution's often broad aspirational clauses and how to apply a 200-year-old text to modern scenarios beyond the conception of the document's drafters. Thus, Scalia's textualism requires an interpretive technique. It is the technique he has chosen and the degree of confidence he has in its results that distinguishes Scalia's textualism.   n63</div> <div> In his seminal article on the origins of Scalia's jurisprudence,   n64 George Kannar argues that Scalia's brand of textualism places particular reliance on philology, the formalistic study of words.   n65 For Scalia, the ordinary social and dictionary meaning of individual words is the most important, and often decisive, ingredient of his analysis of a constitutional provision. Moreover, Scalia requires that the interpretation of text be done "in as semantically precise [a] way as possible,"   n66 with close attention to the formal rules of grammar.   n67 While Kannar defends Scalia's textualism as a pragmatic choice,  [*1390]  he admits this kind of "obsessional textualism" does "frequently tend ... to remove the "text' even from its original historical context."   n68</div> <div> Scalia's opinions generally reflect his theoretical bias toward defining words narrowly, and correspondingly, toward marginalizing broader meanings that could be attributed to the immediate text or to the document as a whole.   n69 This bias is most obvious in statutory interpretation because such cases often require interpretation of narrowly drawn words or phrases.   n70 Here, Scalia often places exclusive reliance on the dictionary definition of the operative word or phrase.   n71 The broadly written and judicially glossed language of the Constitution provides fewer opportunities for this mode of interpretation. Nevertheless, even here, the impact of Scalia's textualism is discernable in cases that involve more specific clauses or phrases. In these cases, Scalia's first option is again to turn to dictionary definitions of the pertinent words at the time the text was adopted. For most constitutional analysis, this means late eighteenth and early nineteenth century dictionaries.   n72</div> <div>  [*1391]  One clear example of Scalia's constitutional law by Webster's is California v. Hodari D.,   n73 a case concerning the meaning of "seizure" in the Fourth Amendment. Modern case law had held that generally, a "seizure" occurs when a reasonable person would not feel free to leave.   n74 However, Scalia's opinion in Hodari D. narrowed the definition of "seizure" to mean "physically grasped" for situations in which a suspect refuses to submit.   n75 Scalia's primary authority for overruling existing precedent in this area was an 1828 version of Webster's Dictionary.   n76 Sometimes, he also buttresses his dictionary definition with historical usage, etymology, and literature.   n77 However, in a few cases, the plain meaning has been so clear to Scalia that he has simply declared the definition he finds obvious without citation.   n78</div> <div> Nevertheless, it is rare that a constitutional provision can be conclusively defined by an ancient Webster's volume. Most constitutional litigation concerns more abstract phrases that are less amenable to semantic dissection and have layers of meaning added by precedent. Scalia's semantic textualism functions predominantly as a nay-sayer, or as he puts it, as a "brake" on the  [*1392]  expansion of constitutional rights.   n79 By narrowly focusing on the precise semantic meaning of each word or phrase, he routinely finds no justification for unenumerated rights, such as substantive due process rights, that the modern Court has held to exist. In sheer numbers, Scalia's "brake" cases are the most representative of his textualism in constitutional law.   n80</div> <div> Scalia's opinions rarely rest solely on textualist analysis. Instead, either to support a plain meaning argument,   n81 or to decide cases that are not amenable to textualist analysis, he turns to the second prong of his methodology - his version of originalism, which he alternately calls "original meaning" or "faint-hearted" originalism.   n82</div> <div> 2. Historical Practices and Scalia's Faint-Hearted Originalism</div> <bR> <div>  The core tenet of originalism, broadly defined, is that "the principal task of judges called upon to interpret the Constitution is to ascertain and give effect to the original intentions of the Framers and ratifiers."   n83 Although it is "a commonplace assertion that to some degree ... all constitutional lawyers are originalists now,"   n84 Scalia's originalism also has distinguishing features, both in theory and in application. Beginning with his confirmation hearing, Scalia took pains to distinguish the generic version of originalism, which he calls "original intent," from his search for the "original meaning."   n85</div> <div> Scalia asserts that for his "original meaning" approach, the beginning and end is the text of the Constitution. Therefore, while he believes it important to understand the Constitution in terms of "what it meant to the society that  [*1393]  adopted it," the final text is what counts, not the actual mental intentions of the drafters or ratifiers of the document.   n86 While Scalia's motives are similar to those of the proponents of "original intent," Scalia's focus on the Framers' end product rather than their pre-or post-drafting debates has significant implications for how he implements his originalism. Unlike many versions of originalism,   n87 Scalia's approach does not use the statements and writings of individual drafters as authoritative sources for the meaning of the text. Rather, he consults these sources only "because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood."   n88</div> <div> Because the extra-textual statements of the drafters are not authoritative, Scalia is left with the problem of how to find a specific historical meaning for the text, especially when the words are too broad to be amenable to a semantic textualism reading. In his oft-cited article, Originalism, the Lesser Evil, Scalia offers only vague, inspirational advice that a judge must immerse himself "in the political and intellectual atmosphere of the time."   n89 Scalia's judicial opinions, however, recognize that his theory needs a firmer footing to avoid subjectivism. In practice, therefore, he grounds his originalism in longstanding historical practices to define, and often to limit, the scope of the Constitution's language.   n90</div> <div> Scalia's "historical practices" originalism operates as follows: when confronted with a claim of constitutional right not resolved by a plain reading, he asks whether the activity existed at common law and during the drafting/ratification period. Activities not in existence or without a very close  [*1394]  historical analog are not protected by constitutional text.   n91 However, if the activity was known and illegal, it still can be restricted without offending the Constitution.   n92 Conversely, if the relevant period permitted a specific practice, its protected status cannot be eliminated. Thus, Scalia's originalism sometimes defends a historic practice now under attack.   n93 However, like his semantic textualism, Scalia's "historical practices" approach more often results in no protection for a modern practice, either because that practice was condemned under the religious or moral precepts of that earlier time,   n94 or because the modern situation was unknown to the Framers.   n95</div> <div> Although Scalia's use of historical practices analysis is hardly novel, two things distinguish his originalism. First is his insistence that in the absence of historical support, the Court should not recognize behavior as protected by the  [*1395]  Constitution.   n96 Second is the process by which he selects the appropriate historical analogy. Scalia has said that, in theory, originalism could include exploration of the "political and intellectual atmosphere of the time."   n97 In his opinions, however, he has stated that the Court should seek out the most specific historical practice of which the Framers were aware that is analogous to the activity at issue.</div> <div> For example, in Michael H. v. Gerald D.,   n98 the Court denied a due process challenge by a biological father who sought parental rights for a child conceived during his relationship with a married woman. A state statute essentially barred his claim by establishing a presumption that the woman's husband was the father of the child if the spouses were cohabiting when the child was conceived.   n99 Justice White's dissent, which Justice Brennan joined, argued that the Court should look at the underlying right asserted by the father, that of parenthood. Using this broad concept, White found a long history of fundamental due process protection that he would have extended to this case.   n100 Under his historical practices approach, in contrast, Scalia found substantial common law roots for the statute, based on an aversion to illegitimacy and the desire to protect the "peace and tranquility of states and families."   n101 Furthermore, finding no historical support for the rights of "adulterous natural fathers" in the common law, Scalia concluded that this biological father had no due process rights. In an extended footnote, Scalia argued that the Court should refer to "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."   n102</div> <div>  [*1396]  Scalia's focus on the most specific historical analog is consistent with his motivating principle to contain judicial discretion because fidelity to the prevailing historical practices at the time of ratification grounds his originalism in fixed and reasonably verifiable extra-textual sources. Moreover, the more specific the historical analog, the closer the current interpretation of the text to the original compact (and correspondingly, the less likely that the opinion will incorporate the subjective views of the Justices). This results in judicial opinions laden with nuts and bolts historiography.   n103 While Scalia recognizes that judges do not always have the time or training for this kind of research,   n104 he asserts the argument that this methodology, at least, tells him what to look for.   n105</div> <div> Aside from the difficulty of historical research, Scalia's dedication to Eighteenth Century mores as an anchor for constitutional analysis presents a further dilemma for his originalism. As Scalia willingly admits, some features of early American society are simply unpalatable to modern sensibilities. Scalia recognizes this limitation and attempts to accommodate it with the final component of his originalism - his so-called "faint hearted" principle.   n106 This  [*1397]  principle permits him to depart from a historical rule, but only when it is absolutely clear that an "evolution in social attitudes has occurred."   n107 While Scalia has never definitively spelled out the parameters of his faint-hearted exception, he has said that a societal shift must appear in "extant" sources.   n108 The sole example he has offered of an extant source is widespread and one-sided legislation either permitting or condemning the practice.   n109</div> <div> The requirement for clear extant verification of social evolution, however, reveals the limited reach of Scalia's faint-heartedness. In his Originalism article, Scalia used public flogging as an example of a historical practice permissible at ratification, but one he would be unlikely to sustain if reenacted by a legislature today.   n110 Without citing specific evidence, Scalia asserted that the societal perception towards flogging has evolved from a permissible practice to an unconscionable one. In other words, to demonstrate that societal attitudes have truly evolved, Scalia wants democracy's hard proof in "extant legislation." Neither opinion polls nor, even worse, the Court's finger in the wind will suffice. But if societal mores have changed so significantly that a historical practice now is either basically forbidden by statutes or no longer imposed by state action, it is doubtful that the issue would reach the Court. Thus, Scalia's threshold for departing from originalism is so high that, while theoretically possible, its conditions rarely, if ever, will occur. Not surprisingly, Scalia has yet to concede openly that the conditions for faint-hearted originalism have been met while he has been a member on the Court.   n111</div> <div>  [*1398]  Thus, an insistence on grounding every asserted constitutional right in historical practice provides an incomplete solution to the need for context created by insistence on fidelity to constitutional text. Even Scalia recognizes that the open-ended nature of the Constitution's language and the inadequacy of historical inquiry do not provide an answer for every case. Therefore, he acknowledges that sometimes the Court must create constitutional doctrine in a manner similar to that in which the courts developed the common law.   n112 This is where the "clear rules" principle comes into play.</div> <div> 3. The Clear Rules Principle and Formal Realizability</div> <bR> <div>  Published in 1883, German philosopher Rudolf von Ihering's classic Spirit of the Roman Law touted the use of clear rules in a governmental or legal system in order to restrain official arbitrariness and to promote certainty of application.   n113 According to von Ihering, a well-written rule has "formal realizability" in that it permits the administrator to determine the correct result by confirming a convergence of easily identifiable events or factors.   n114 Opposing clear rules are legal standards. Standards "collapse decisionmaking back into the direct application of the background principle or policy to a fact situation ... [and] give the decisionmaker more discretion than do rules.... Thus, the application of a standard in one case ties the decisionmaker's hand in the next case less than does a rule ...."   n115</div> <div>  [*1399]  Almost one hundred years later, Justice Scalia arrived at similar conclusions for constitutional law in his article The Rule of Law as a Law of Rules.   n116 General rules, Scalia asserts, constrain not just the lower courts but the high court as well: "only by announcing rules do we hedge ourselves in."   n117 Thus, contrary to the conventional wisdom that the case-by-case approach is "the course of judicial restraint, "making' as little law as possible in order to decide the case at hand," Scalia asserts that the common law approach and its modern cousin, the balancing test, actually leave judges free to decide the next case according to their own preferences.   n118 Moreover, because balancing tests use multiple factors, it is difficult to prove inconsistent reasoning from case to case, and hence the intrusion of judicial bias.   n119 Despite his dislike of balancing tests, Scalia recognizes that these "modes of analysis [will be] with us forever," because of the prevalence of balancing tests in precedent and because some constitutional language inevitably requires their usage.   n120 Therefore, all he urges is that they "be avoided where possible; and that the rule of law, the law of rules, be extended as far as the nature of the question allows."   n121</div> <div> Although framed only as a preference, Scalia's insistence on clear rules in constitutional cases should not be underestimated. According to Kathleen Sullivan, it is the rules-versus-standards divide that is most responsible for the frequent rifts between Scalia and the moderates on the current Court.   n122  [*1400]  Scalia's opinions chide these Justices for a host of clear rules violations including creating unclear rules,   n123 applying flexible balancing tests that fail to provide guidance or restrain judicial discretion,   n124 or undermining previously clear rules by creating new exceptions, all to justify their preferred outcome.   n125 Scalia's attachment to the clear rules principle also reverses the old adage,  [*1401]  "seeing is believing." Because Scalia believes so strongly in the need for clear rules, he often sees a clear rule in precedent where others find only ambiguity or a balancing test.   n126</div> <div> C. The Interplay of the Methods: Hierarchy and Compatibility</div> <bR> <div>  Scalia's contention that he has established a cohesive methodology rather than three independent tools of constitutional analysis depends upon several additional assertions about the relationship and interplay of the component parts.</div> <div> First, to be capable of consistent application, the components of a methodology must be arranged in a definite hierarchy. Otherwise, the choice of component can be influenced by the desired result. Scalia's stated hierarchy is that constitutional analysis should always begin with the plain meaning of the text, and if necessary, proceed to historical practices, and then to clear rules.   n127 Moreover, this hierarchy is reinforced by Scalia's assertion that each component relates back to the text of the Constitution as its ultimate source of authority. For example, in the context of the clear rules principle, Scalia has said that the Court cannot create rules "out of whole cloth, but must find some basis for them in the text that ... the Constitution has provided."   n128</div> <div> Second, Scalia contends that his components are compatible and, indeed, mutually reinforcing. For example, he asserts that each component operates to constrain judicial discretion.   n129 Thus, whatever part or parts of the methodology  [*1402]  come into play in a given case, the resulting analysis still advances the motivating principle of the methodology. Each component also employs similar analytic tools. For example, textualism and the clear rules principle share a central faith in clarity of language to express and control meaning in judicial interpretation.   n130 Therefore, Scalia claims that in most cases, analysis under any component leads to the same outcome.   n131 Thus, even when the text provides a clear answer, he often will cite historical practices to buttress his textual interpretation.   n132 Scalia also relies on the professed compatibility of the components to adjust to the circumstances of different cases. Often, where constitutional language is too open-ended to be amenable to a plain meaning approach, Scalia either falls back on historical practices to limit the scope of the text or finds a general rule in (or crafts a general rule out of) historical practices or precedent.   n133 Therefore, while each component of the methodology is important in its own right, the principles of hierarchy and compatibility lie at the heart of Scalia's claim that he has achieved a consistent constitutional methodology with resilience against judicial discretion.   n134</div> <div>  [*1403]  </div> <div> II. The Critique of Scalia's Constitutional Methodology </div> <div> A. The Costs of the Methodology</div> <bR> <div>  Even for the conservative Rehnquist Court, wholehearted adoption of Scalia's methodology would radically transform constitutional jurisprudence and significantly reduce the role of the Court in American society.   n135 Resolution of substantive due process issues likely would devolve entirely to Congress and state legislatures.   n136 More generally, unless moved by the "dead" hand of history, the Court would deem itself powerless to intervene in many areas in which it has been active for decades.   n137 At the same time, any legislative efforts to experiment with governmental structure   n138 or to regulate practices with historical pedigrees would be rejected by the Court.   n139 Additionally, in the interest of suppressing judicial discretion, the Court frequently would have to affirm the harsh but unintended consequences of applying "clear rules" from precedent in new and unforeseen contexts.   n140</div> <div> For Scalia, limiting judicial resolution of divisive social issues and legislative tinkering with governmental structure would be positive developments. For many, however, the Court has played too important a role in ameliorating longstanding social inequities and resolving gridlocked political issues, making Scalia's emasculation of the Court impossible to stomach. The price Scalia demands to counter the countermajoritarian problem is simply too high for them.   n141</div> <div>  [*1404]  To demonstrate this point, some critics make convincing arguments that Brown v. Board of Education   n142 and a host of other civil rights and civil liberties decisions would never have come to pass under an originalist regime.   n143 According to these commentators, a constitutional methodology that would prevent the next Brown abandons the Court's role as the ultimate guarantor of the broadly painted promises of liberty and justice found in the Constitution and Declaration of Independence.   n144 Robert Post believes that "at some point every judge will say that one purpose of the Constitution is to consolidate the "whole experience' of the nation, which may call the national ethos."   n145 At such moments, the nation needs a broader interpretative methodology than Scalia advocates.   n146</div> <div>  [*1405]  More pragmatic critics emphasize the current balance of power among the branches of government. Binding the Court to textualism and historical practices frustrates the judiciary's fundamental responsibility under the separation of powers principle to check the excesses of the executive and legislative branches, whose powers have dramatically expanded since the founding of the nation.   n147 In addition, for those not obsessed with judicial discretion, there is no reason to adopt a myopic methodology that produces results out of accord with simple notions of fairness.   n148 As Judge Leventhal eloquently wrote, "every mature system of justice must cope with the tension between rule and discretion. Rules without exceptions may grind so harsh as to be intolerable ...."   n149 The clarity that semantic analysis allegedly delivers comes with a similar cost. As Judge Learned Hand stated, "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary."   n150 Nor were the pitfalls of over-reliance on historical practices overlooked by Justice Holmes, who once quipped that "it is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV."   n151</div> <div> To safeguard their vision of the Constitution and the Court, the modern disciples of Holmes, Hand, and Leventhal have launched a counterattack on the legitimacy of Scalia's methodology. This counterattack comes in two basic forms, although there is some overlap. The first consists of theoretical attacks that call into question the underpinnings of Scalia's methodology; the second consists of "as applied" arguments that Scalia selectively fails, in practice, to apply his methodology faithfully where its results would conflict with his ideological values.</div> <div>  [*1406]  </div> <div> B. The Theoretical Attacks </div> <div> 1. Text and Original Intent</div> <bR> <div>  As noted in Part I, neither the Constitution's text nor the historical record clearly mandates Scalia's methodology.   n152 Others have gone further, arguing that the text and the historical record affirmatively require a broader interpretive methodology and a larger role for the Court. Under this rubric, scholars such as Ronald Dworkin and Lawrence Tribe assert that they, not Scalia, are the true textualists and originalists.</div> <div> Dworkin states that "the Framers were careful statesman who knew how to use the language they spoke"; thus, "they are best understood as making a constitution out of abstract moral principles, not coded references to their own opinions (or those of their contemporaries) about the best way to apply those principles."   n153 The view that the Constitution's broader clauses are aspirational guides rather than a series of fixed commands also "surely suggests that the authors originally intended that their successors should not be bound by their original understanding of these terms."   n154 These critics also assert that their understanding of the text and original intent is more consistent with the intellectual backdrop of the period than is Scalia's. Early American political figures and lawyers were comfortable with judge-made common law and with natural law concepts, both of which are inimical to the positivism of Scalia's methodology.   n155 Jeffrey Rosen notes, "Originalism, in other words, sometimes leads inexorably to the common law constitutionalism that Scalia wants to avoid."   n156 Additionally, H. Jefferson Powell asserts that the Framers opposed the use of their historical records to interpret the text of the Constitution.   n157  [*1407]  Others take a political realist's view that some of the Constitution's ambiguous language reflected political compromises, just as legislative drafting does today, leaving the messy details of elaboration to future generations and to the Court.   n158</div> <div> Finally, some political scientists disagree with Scalia's contention that leaving constitutional interpretation to the "dead hand" of history is more democratic than allowing living judges to make those decisions. Living judges at least share the same political, technological, and intellectual world of the current generation and are selected by this generation's representatives. Thus, according to these theorists, Scalia's methodology does not really solve the countermajoritarian difficulty because it also supplants the will of the current majority, choosing the obscure intent of the deceased Framers over the judgment of living judges.   n159</div> <div> 2. The Methodology and Judicial Discretion</div> <bR> <div>  </div> <bR> <div> To be uncertain is to be uncomfortable, to be certain is to be ridiculous.   n160</div> <bR> <div>  Assuming neither text nor original intent requires Scalia's methodology, its primary justification is its claim to restrain judicial discretion.   n161 Substantial scholarship suggests, however, that on a theoretical level, Scalia's methodology is incapable of delivering on this promise.   n162 This branch of critique focuses  [*1408]  on the underlying assumptions of textualism, originalism, and the clear rules principle.</div> <div> Hermeneutic theory challenges Scalia's overly optimistic belief in the clarity of language on several fronts.   n163 Boiled down to its essence, "modern linguistic theory teaches that words are not the mechanistic tools the textualists suppose [and that] meaning is neither precise nor determinate; textual meaning changes along with each succeeding interpreter's need."   n164 Thus, while hermeneutic theory will not deny that text can have a plain meaning to Scalia, it refutes his assertion that his meaning is, or should be, plain to everyone involved. Contrary to Scalia's claim, textualist analysis of the Constitution by different judges can yield more than one "clear" meaning. Therefore, textualism cannot limit judicial discretion,   n165 nor is a deep understanding of linguistic theory essential to demonstrate this point. All that is necessary is to contrast the "plain meaning" of the Bill of Rights as defined by Justice Scalia with that of the other leading textualist of the twentieth century, Justice Hugo Black.   n166</div> <div> Scalia's originalism also rests on an overly optimistic assumption that historical analysis can yield a precise legal meaning of discrete phrases in a two-hundred-year-old text.   n167 Scalia partially acknowledges this problem but fails  [*1409]  to appreciate the degree to which it undermines his premise that originalism can control judicial discretion.   n168 For example, Scalia notes that historical records can sometimes be incomplete and that lawyers are not always suited to the tasks involved in such research.   n169 Nevertheless, he argues that because he seeks the most specific relevant historical practice his discretion is confined to external and verifiable facts.   n170</div> <div> Commentators, however, point out that Scalia lacks an internal rule to identify the relevant tradition or the level of generality within that tradition that constitutes the "most specific historical practice."   n171 Scalia also fails to dis-tinguish between academic historical research and what historians derogatorily refer to as "lawyers' histories." As one scholar noted, "lawyers' histories" force the past to yield an answer that can be stated as a legal rule, while academic historians, on the other hand, recognize that historical research generally offers only an incomplete, conflicting, or evolving process of  [*1410]  historical development.   n172 Therefore, isolating one practice or rule from historical materials to define a historical text distorts whatever "objective" history exists. Especially for the thorniest sections of the Constitution, historical practices originalism offers only the illusion of clarity.   n173</div> <div> A similar critique has been posed for the clear rules principle. While Scalia is correct that flexible standards openly permit judicial discretion, scholars demonstrate that the same results are possible under a clear rules system. For every clear rule, they maintain, a court can find an existing exception or a reason to create a new one.   n174 These critics even point to examples of rule manipulation in Scalia's own opinions to illustrate that Scalia hides what are really arbitrary distinctions under the cover of his confident textualist and originalist pronouncements.   n175 For example, Lawrence Lessig asks why Scalia accepts changes in the meaning of "search" in the Fourth Amendment to embrace technological developments but deems it impermissible to change the meaning of "reasonableness" based on a changed understanding of that term.   n176</div> <div>  [*1411]  </div> <div> 3. The Methodology and Precedent</div> <bR> <div>  Scalia's exact position on precedent has been unclear since his confirmation hearing.   n177 On one hand, Scalia acknowledges that stare decisis brings "certainty and stability into the law and protects the expectations of individuals and institutions that have acted in reliance on existing rules."   n178 Furthermore, the doctrine itself restrains "an arbitrary discretion in the courts."   n179 Therefore, Scalia acknowledges that he sometimes votes to uphold precedents that conflict with his reading of text and tradition.   n180 On the other hand, he also has said that the doctrine of stare decisis is weakest in constitutional cases because text and tradition should control.   n181 Accordingly, Scalia has voted to overrule more cases than any sitting or recent Justice.   n182</div> <div> Laurence Tribe, Scalia's chief critic in this area, argues in A Matter of Interpretation that Scalia's partial acceptance of precedents that conflict with his methodology contains an implicit recognition that constitutional rights can evolve.   n183 Scalia disagrees with this assessment:</div> <bR> <div> Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare  [*1412]  decisis; it cannot remake the world anew.... The demand that originalists alone "be true to their lights" and forswear stare decisis is essentially a demand that they alone render their methodology so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance .... [Moreover,] stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it ....   n184</div> <bR> <div>  Scalia's response to Tribe is unsatisfactory for two reasons. First, it is evasive. An evaluation of Scalia's jurisprudential consistency can be fair only if it is based upon all of his opinions. He cannot omit a subset of cases without conceding that, at least for that group, an evolutionary Constitution is permissible.   n185 Second, Scalia's claim to the mantle of pragmatism conflicts with his desire for a methodology that restricts judicial lawmaking. Pragmatism embraces discretionary, subtle judgments on the part of the decisionmaker. Given that virtually no provision of the Constitution remains unglossed by past decisions, Scalia's partial willingness to accept precedents that conflict with his methodology conveniently opens a back door to value choice.   n186</div> <div> Scalia acknowledges that "stare decisis affords some opportunity for arbitrariness, though [he] attempts to constrain [his] own use of the doctrine by consistent rules."   n187 Even accepting Scalia's premise that a rule-governed  [*1413]  approach to stare decisis is theoretically consistent with his methodology, a secondary level of critique alleges that he has failed to articulate any consistent clear rules to determine when contrary precedents can stand and when they must fall. A review of Scalia's various statements on this subject reveals what is, at best, a flexible standard and, at worst, a series of contradictory and malleable axioms. Thus, under his own clear rules standard, his approach to precedent appears to be more patchwork than pattern.   n188</div> <div> C. The "As Applied" Attacks </div> <div> 1. Sacrificing Methodology for Result</div> <bR> <div>  A smaller group of scholars do battle with Scalia on his own turf. These critics examine the components of Scalia's methodology in action, arguing that whatever the theoretical viability of the system, Scalia does not faithfully implement it in practice. They identify particular cases or doctrinal areas in which Scalia distorts the applicable text,   n189 misstates historical practices,   n190  [*1414]  misinterprets precedent,   n191 or misapplies an existing clear rule.   n192 Some of these commentators also identify what they believe are the political or ideological forces driving Scalia's actions in a particular area. For example, Daniel Reisman believes that Scalia's repeated historical errors in his separation of powers doctrine are motivated by his vision "of government characterized by a preeminent Executive."   n193</div> <div>  [*1415]  Michael McConnell believes that Scalia's historical arguments in City of Boerne v. Flores   n194 were wrong to the point of misleading.   n195 While Scalia did cite various colonial charters, McConnell points out that these quotations are "selective" and that review of the complete charters undermines Scalia's restrictive view of the Free Exercise Clause.   n196 Other critics have identified examples in which Scalia failed to apply the most specific tradition to the issue in the case or was otherwise selective in his use of historical materials.   n197</div> <div>  [*1416]  More broadly, Robert Post argues that beyond mere manipulation, Scalia sometimes completely abandons text, history and rules in favor of arguments based upon broad principles that are antithetical to his methodology and motivating ideology.   n198 For example, Scalia's "passionate opinions opposing race-based affirmative action make no serious effort to explore the original meaning ... of the Equal Protection Clause.... They turn instead on an urgent appeal to the "American principle' that "men and women' should not be classified on "the basis of ... the color of their skin.'"   n199 While this principle may indeed be fundamental to "the very character of the nation," resort to this type of argument leaves enormous leeway for Scalia to interpret the "delphic generalities of the Fourteenth Amendment."   n200 In fact, given the strong historical evidence that the congressional framers of the Fourteenth Amend-ment passed legislation whose benefits were "expressly limited to blacks," it can be argued that they would have supported affirmative action.   n201 Similarly, others argue that Scalia abandons his methodology by default when he joins majority opinions that advance broad policy or principle arguments with no  [*1417]  basis in the text or history.   n202 For example, in the five-to-four decisions in the voting rights cases Shaw v. Reno   n203 and Miller v. Johnson,   n204 Scalia's vote was essential to the majority, but he did not write separate opinions even though the majority opinions in both cases were based primarily on the principle that legislation that classifies and segregates voters by race injures voters by reinforcing racial stereotypes and otherwise undermines democracy,   n205 rather than on text, history or precedent.   n206</div> <div> While perhaps a few of these articles might be suspect as idiosyncratic approaches to history or text themselves,   n207 the pedigree and quality of the "as applied" critique makes a compelling case that Scalia's implementation of his methodology is neither consistent nor free of the influence, conscious or not, of his political values.</div> <div> 2. The Interplay of the Methods: Heterarchy, not Hierarchy</div> <bR> <div>  In defending Scalia's methodology, George Kannar invokes the child's game of "rock, paper, scissors."   n208 Kannar asserts that for Scalia, "text "takes' precedent, precedent "takes' policy, and ordinary meaning, legalistically construed, takes all."   n209 However, this analogy is ill-chosen because Kannar has  [*1418]  the rules of the child's game all wrong. In "rock, paper, scissors," no choice always "takes all" (if it did, it would be a pretty pointless game to play). Rather, rock takes scissor, scissor takes paper, but paper takes rock. As a result, each game is a fluid system in which the "strength of each contestant's position is always relative."   n210 James Ogilvy has termed this a heterarchy: a system with an established set of rules but lacking "an unambiguous pecking order."   n211 </div> <div> Heterarchy, not hierarchy, could be the battle cry of those critics who focus on the interplay of Scalia's methods rather than on the individual components. Led by Jeffrey Rosen, this group alleges that, even if Scalia's methodology is hierarchical in theory, his opinions reflect a more opportunistic picking and choosing of the method that leads to his preferred result.   n212 Rosen's contention is that "in case after case, Scalia chooses among mutually inconsistent interpretive principles - textualism, originalism, traditionalism - in order to reach results that he finds politically congenial."   n213 For example, Rosen challenges Scalia's claim that the Due Process Clause of the Fourteenth Amendment  [*1419]  should be read to refer only to procedural rights. He argues that a historical understanding reveals a "substantial overlap ... between notions of due process of law and notions of equal protection of the law," as well as a "view [of] the due process clause as a mandate that judges should protect certain fundamental economic rights."   n214</div> <div> A number of scholars have come to similar conclusions in other areas.   n215 In his examination of Scalia's takings jurisprudence, William Fisher found that in Lucas v. South Carolina Coastal Council,   n216 Scalia devised a precedent-based clear rule for takings without first exploring the Framers' understanding of the Takings Clause.   n217 If he had, Fisher contends, he would have discovered that the original understanding of this clause "proscribed only formal expropriations of private property," not the effects of regulations on property value that Scalia's rule encompassed.   n218 In terms of the rock, paper, scissors game, therefore, these scholars allege that Scalia puts out his hand (text, historical practices, or clear rule) only after first seeing what the other side has played.   n219</div> <div>  [*1420]  Normally, Scalia evades these contradictions by resorting to overly confident textualist assertions   n220 or by abdicating his commitment to conduct historical research.   n221 Once in a while, however, Scalia comes close to admitting that he does not always follow a strictly hierarchical approach beginning with text and proceeding to history and clear rules. For example, in Waters v. Churchill,   n222 he acceded to a judicially created First Amendment doctrine (a clear rule) but admitted that he had not "inquired into the historical justification" of that rule.   n223</div> <div> Rather than that of a systemic ideologue with a hierarchy of methods,   n224 Scalia's constitutional practice better resembles that of a practical handyman who reaches into his workbox to select the tool best suited to accomplish a particular job.   n225 The question that remains, however, is how often his political values influence his methodological choices.</div> <div> 3. The Globalists, the Contrarian Cases and the Methodology</div> <bR> <div>  Both strands of the "as applied" critique provide powerful evidence that, consciously or unconsciously, Scalia's values affect his analysis. In particular, those studies that retrace Scalia's historical steps or parse Scalia's logic do  [*1421]  much to undermine his claims of judicial neutrality. However, some scholars go too far when they assign a dominant purpose to Scalia's jurisprudence.   n226 One group focuses on Scalia's substantive politics as the underlying key to his jurisprudence. For example, Jeffrey Rosen argues that "Scalia's real allegiance is simply to preserving "traditional American moral values' at all costs.... He strives in his jurisprudence to conserve traditional moral values against legal and cultural change. He is exercised not by the methodology of recent Supreme Court decisions, but by the results."   n227 In a similar vein, Richard Brisbin argues that Scalia's methodology is ultimately an artifice that masks his politics "favored by the conservative revival: executive policy leadership and a reinforcement of the status of interests that are already powerful."   n228</div> <div>  [*1422]  At the opposite pole, another kind of globalist argument focuses exclusively on one aspect of Scalia's methodology rather than on his politics and exaggerates its significance to his overall jurisprudence. For example, Eric Segall suggests that Scalia's rule of law principles also explain his originalism, thereby conflating distinct and independent components of the methodology.   n229 Similarly, Kannar's fascinating study of the roots of Scalia's semantic formalism unduly minimizes the impact of Scalia's politics on a subset of his opinions.   n230</div> <div> Regardless of whether these scholars argue that Scalia is motivated by his conservative values,   n231 his substantive stand on the issue,   n232 or process-related goals such as formalism and the rule of law,   n233 the attempt to formulate a global explanation for Scalia's jurisprudence is bound to fail. On the one hand, those who define Scalia's jurisprudence by process goals cannot explain the growing scholarship that provides examples of Scalia's chicanery with his methodology in cases involving politicized issues.   n234 On the other hand, those who argue that Scalia's political agenda controls his jurisprudence cannot account for the  [*1423]  contrarian cases in which Scalia chooses to remain faithful to the methodology despite his political distaste for the result.   n235 Scalia himself frequently refers to his vote in Texas v. Johnson   n236 as an example. To the disdain of many conservatives and even of his own wife,   n237 Scalia voted with his liberal colleagues to hold that the flag burning statute in Texas v. Johnson was unconstitutional under the First Amendment.   n238 Although Scalia himself admitted that he too did not "like scruffy people who burn the American flag," he asserted that the text of the Constitution gave him no other choice.   n239</div> <div> Occasionally reaching "liberal" results such as this has proven very useful to Scalia. He holds up the contrarian cases as proof that his methodology is politically neutral and constrains judicial discretion.   n240 Scalia's defenders cite these cases to dismiss those "who say that Scalia has a rigid view of the Constitution that benefits powerful interests and neglects individual rights,"   n241 and even his honest critics are forced to acknowledge these cases.   n242 By not  [*1424]  incorporating the contrarian cases into their theories, though, the political globalist scholars miss an important point. Because Scalia's self-professed agenda is to promote his methodology, not his politics, no theory should overlook that at least some of his opinions are self-consciously drafted to make clear that they contradict his personal politics.   n243 Without these cases, Scalia would have no proof that his methodology works as he claims, considering that the inherent biases of his methodology so often lead to conservative outcomes anyway. Moreover, by not studying the contrarian cases, these scholars miss an important opportunity to understand better the complexity of Scalia's true, although perhaps unconscious, motives. For example, such a study might offer an explanation for why Scalia chose these particular cases to make his methodology the focus of his opinion, and thus accept a distasteful result, rather than manipulate text, history or precedent to produce a result consistent with his political stand on that issue.   n244 </div> <div> The failure to account for the contrarian cases also reveals another weakness of the "as applied" globalists' accounts of Scalia's jurisprudence in action. Such scholars generally portray Scalia's doctrinal manipulation as the result of a two-way battle between his neutral methodology and his conservative politics, with his politics winning out. In fact, Scalia's opinions reflect a more complex interaction of sometimes consistent and sometimes warring influences. As discussed in Part I, Scalia's claim is that his method-ology is motivated not by his conservative politics, but by his antipathy to judicial discretion. Thus, for Scalia, it is really just a convenient fortuity that his methodology's narrow textualism and reliance on traditions from a more conservative era generally produce politically conservative results (although certainly this tendency may have had something to do with his initial willingness to adopt it). Accepting Scalia's assertion that judicial discretion is his most important value, when a faithful application of the methodology would produce a politically liberal result, Scalia really does have two choices. He can either accept the result and fashion an opinion that trumpets the neutrality of his methodology, producing a contrarian case, thereby advancing  [*1425]  his methodological agenda, or engage in doctrinal or historical manipulation, thereby producing an opinion that advances his political values.   n245</div> <div> Moreover, within this framework, there is a subset of cases that is even dearer to Scalia than those generally viewed as "political." These cases involve the motivation for the methodology: issues of judicial power and hence judicial discretion. As with the blatantly political cases, his methodology sometimes yields a reasonable inference that text, historical practices, or precedent are hostile to an expansive interpretation of judicial power.   n246 However, this is not always the case. In fact, given the broad authority of the common law courts and the American judiciary's long history of judicial activism, Scalia's methodology yields quite the opposite result on a number of judicial power issues.   n247 In particular, given the common law courts' legacy, originalism often comes into conflict with his motivating ideology.   n248 Several "as applied" studies, in fact, suggest that the Scalia opinions most likely to contain severe deviations from his methodology are not the hot-button political and social issues like abortion, but those that involve judicial power.   n249 Moreover, to date, none of Scalia's contrarian opinions contains an expansive interpretation of judicial power; in fact, the opposite is true.   n250</div> <div> Scalia's opinions, therefore, can be best understood as the product of the three-way tension between a faithful application of his methodology, the ideological motivation for the methodology, and his distinct conservative political values on particular issues.   n251 Thus, rather than a pointless search for  [*1426]  one explanation for Scalia's jurisprudence, scholarly research would be better spent carefully retracing his footsteps through text, history, and precedent to determine in each case which force has triumphed. Because Scalia personally identifies the motivating principle for his methodology as his fear of an unrestrained judiciary let loose in a constitutional democracy,   n252 it makes sense in particular to test whether the methodology succeeds first and foremost in restraining him in cases, not just when conservative political issues are involved, but when the central jurisprudential issue for the methodology - judicial discretion - is at stake.</div> <div> Conclusion</div> <bR> <div>  Despite Scalia's desire to turn judges into automatons, the theoretical critique makes a strong case that his methodology cannot eliminate the need for judges to make difficult, nuanced, and indeed, political judgments in constitutional interpretation. Because words cannot be defined in a vacuum, textualism neither precludes malleable arguments based on the structure of the Constitution nor answers questions unforeseen by the Framers. Originalism rests not just on difficult historical research, but on an evaluation of incomplete and conflicting records. And, whether Scalia considers stare decisis part of his methodology or not, the Court often is faced with precedent that conflicts with his methodology. Ultimately, then, Scalia's methodology provides no cure for the countermajoritarian difficulty, because like any system of interpretation, Scalia's system leaves ample room for judicial discretion and the intrusion of judicial values. As Mark Tushnet notes, there "can never be a political justification" for Scalia's methodology.   n253 Rather, to the extent judges are constrained, it is not by their methodologies, but by their personal choice in each case to respect the elected branches' resolution of an issue.   n254 With self-restraint as the measure, the "as applied" critique shatters Scalia's assertion that his methodology cabins judicial discretion. These scholars have shown that when his strongest jurisprudential and political values are at stake, Scalia's vaunted constitutional methodology does not constrain even its own creator.</div> <div>  [*1427]  Moreover, if Scalia's methodology fails in its core political objective, perhaps its attendant costs are not worth bearing: its parsimonious view of the Court's authority to resolve social and political issues, its reliance on outdated historical practices, and its limits on the Court's ability to ameliorate the harsh results of its own precedent-based rules. Thus, the proven failure of Scalia's methodology in practice should reinvigorate proponents of less rigid models of constitutional interpretation and encourage a more honest debate about judicial restraint and the impact of personal values on judicial decisions.</div> <div> The failure of Scalia's methodology to restrain even him also brings into focus his misguided effort to incite a crisis in American constitutional democracy. This charge brings me back to my initial comparison of Gary Hart's and Bill Clinton's marital infidelity with Scalia's methodological infidelity. My original purpose, I admit, was just to be humorous. But, in retrospect, perhaps Scalia, Hart and Clinton share not just a personality trait, but a profession as well. As a variety of scholars have noted, despite Scalia's claim that the Court should stick to "lawyer's work,"   n255 his opinions "[appear] more like the rhetoric of the militant political activist."   n256 He bemoans the protesters who mass outside the Supreme Court on the anniversary of Roe v. Wade and the political hate mail the Justices now receive,   n257 placing the blame entirely on the judicial activism of the legal elites.   n258 Beyond the sniping of his opinions, Scalia is unique in that he has taken his case directly to the American public. Year in and year out, before lawyers' groups,   n259 students assemblies,   n260 and a host of  [*1428]  public speaking engagements,   n261 Scalia delivers his standard stump speech. He tells the people about his "dead" Constitution, and that only his methodology can preserve the legitimacy of the Court and the Constitution.   n262 In essence, Scalia's frustration with the Court's unwillingness to adopt his methodology has led him to become not just a politicized judge but a true politician.</div> <div> My complaint, however, is not just the hypocrisy of a public campaign to promote a methodology allegedly designed to de-politicize the judiciary. More importantly, a serious problem exists with Scalia's "political platform." Despite Scalia's promise to these wider audiences, there are no simplistic answers to the important constitutional questions or to the overarching issue of judicial review. As Robert Post notes in his review of Scalia's book, A Matter of Interpretation, "the Constitution is not a puzzle to be solved, and there is no escaping the hard responsibility for judgment that the practice of constitutional adjudication imposes upon our judges."   n263 Post believes that Scalia's opinions hint that Scalia really does know "that our Constitution is an untidy and complex charter of governance which cannot be reduced to the purposes and proscriptions of any single interpretative method."   n264 And in fact, in rarified academic debates, Scalia will admit, for example, that his methodology does not necessarily tell him for certain when to accept or reject precedent.   n265</div> <div> Therefore, Scalia misses the irony that his public message actually undermines his goal of preserving the citizenry's trust in the Court. Scalia's error is not just that he is a Justice behaving like a politician, but that he has chosen to be the worst kind of politician. By demonizing his opponents, he de-legitimizes the judicial branch whenever the "wrong side" wins. Whether issues are framed as political or legal,   n266 the radicalization and degradation of the political process begins by painting difficult choices as black and white. Scalia's claim that his constitutional methodology yields results devoid of  [*1429]  personal values misleads the public into believing that constitutional adjudication is easy. To the public, Scalia is selling not just a dead Constitu-tion, but a "Constitution Lite." Thus, when he denounces difficult decisions of the Court as judicial usurpation of the democratic process,   n267 Scalia gives aid and comfort to political extremists who would disregard and flout the Court's authority.</div> <div> Moreover, both Scalia's unworkable methodology and his destructive political campaign borne of countermajoritarian pique are completely unnecessary. According to constitutional theorists such as Barry Friedman, in reality all three branches of government, not just the courts, are countermajoritarian by design; part and parcel of the checks and balances established by the Framers.   n268 And, at the same time, all three branches, including the Court, have majoritarian features as well.   n269 Thus, according to Friedman, the process of constitutional interpretation that actually occurs is a complex dialogue among the Court, the President, Congress, state and local government, and the People. The Court is constrained not by a particular interpretative methodology but by this fluid political process, which includes the Senate's role in appointments and the Court's own recognition of the limits of its power.   n270 In fact, one could argue that Scalia's public campaign is itself part of this dynamic. What Scalia misses by viewing the Court as the sole repository of countermajoritarian evil in the Constitution, however, is the Court's special role as facilitator and molder of the debate over the current meaning of the Constitution.   n271 Ultimately then, only when Scalia explicitly acknowledges the substantial gap between what he preaches and what he practices can he enter into a meaningful debate with those who believe in "the metaphor of the "living' Constitution."   n272 Only then will Scalia thereby invigorate rather than diminish this societal dialogue about the Constitution and, correspondingly, the prestige and legitimacy of the Court he claims to love.</div> <div>  </div> <bR> <div> FOOTNOTES: </div> <div> n1. E.J. Dionne, Jr., The Elusive Front Runner, N.Y. Times, May 3, 1987, 6 (Magazine), at 38.</div> <div> n2. See Jim McGee & Tom Fiedler, Miami Woman is Linked to Hart: Candidate Denies Any Impropriety, Miami Herald, May 3, 1987, at A1; Judy Wiessler & Cragg Hines, Hart Drops Out of Race for President, Hous. Chron., May 8, 1987, at A1; see also David Shribman, Gary Hart's Goal is to Act Like the Challenger Despite the Front-Runner Status in Presidential Bid, Wall St. J., Apr. 3, 1987, at 58. These days, Donna Rice Hughes is a spokesperson for Enough is Enough!, a grassroots group crusading against pornography on the Internet. See Al Goldstein, Cybersex Leaves Me Limp, Forbes, Dec. 2, 1996, at 105, 105.</div> <div> n3. Peter Baker & Susan Schmidt, Starr Pushes Forward Despite Clinton Admission, Wash. Post, Aug. 19, 1998, at A1 (discussing Clinton's earlier emphatic denial of an affair on January 26th).</div> <div> n4. See Walter Shapiro, Fall from Grace, Time, May 18, 1987, at 16. Hart's challenge came on the eve of a secret cruise to Bimini with Donna Rice. See id. For additional perspectives on the lessons of the Hart scandal, see Hendrik Hertzberg, Sluicegate, New Republic, June 1, 1987, at 11; Richard Zoglin, Stakeouts and Shouted Questions, Time, May 18, 1987, at 28. For a comparison of Gary Hart and President Clinton, see David Sarasohn, Unfaithful to Voters, Portland Oregonian, Jan. 23, 1998, at D14 (arguing that after the previous Clinton sexual scandals, "President Clinton was on a kind of probation, issuing to all the challenge that toppled Gary Hart: "Follow me around. You'll be very bored.'").</div> <div> n5. See, e.g., Adam Nagourney, "Outsiders" Hope to Draw on Voters' Discontent, USA Today, Sept. 13, 1991, at 5A (characterizing President Clinton as a moderate who poses "challenges to Democratic orthodoxy"); Kris Newcomer, Judges Often Out of Touch, Scalia Says, Rocky Mtn. News, Sept. 7, 1995, at A17, available in <I>1995 WL 3211244;</I> Robert Post, Justice for Scalia, N.Y. Rev. Books, June 11, 1998, at 57, 57 ("Charming and pugnacious, he appears to enjoy and sometimes even to court controversy.").</div> <div> n6. <I>United States v. Virginia, 518 U.S. 515, 567 (1996)</I> (Scalia, J., dissenting).</div> <div> n7. See, e.g., William N. Eskridge, Jr., Textualism, The Unknown Ideal?, <I>96 Mich. L. Rev. 1509 (1998)</I> (book review); Donald J. Kochan, The Other Side of the Coin: Implications for Policy Formation in Law of Judicial Interpretation, 6 Cornell J.L. & Pub. Pol'y 463 (1997) (book review); Larry Kramer, Judicial Asceticism, <I>12 Cardozo L. Rev. 1789 (1991)</I> (critiquing Scalia's focus on general rules); Charles R. Priest, Book Review, <I>50 Me. L. Rev. 185 (1998);</I> Daniel N. Reisman, Deconstructing Justice Scalia's Separation of Powers Jurisprudence: The Preeminent Executive, <I>53 Alb. L. Rev. 49 (1988)</I> (focusing on the doctrine of separation of powers). Scalia's contribution to the recent book, A Matter of Interpretation, is partly responsible for the very recent surge in articles about him. See Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997); see also Christopher E. Smith, The Constitution and Criminal Punishment: The Emerging Visions of Justices Scalia and Thomas, <I>43 Drake L. Rev. 593 (1995)</I> (arguing that the philosophies of these Justices would further limit judicial supervision of criminal punishment); David Sosa, The Unintentional Fallacy, <I>86 Cal. L. Rev. 919 (1998)</I> (book review).</div> <div> Despite the relatively recent surge in attention, Scalia has held a special fascination for scholars since his appointment. See Michael P. King, Justice Antonin Scalia: The First Term on the Supreme Court-1986 -1987, <I>20 Rutgers L.J. 1 (1988);</I> Thea F. Rubin & Albert P. Melone, Justice Antonin Scalia: A First Year Freshman Effect?, 72 Judicature 98 (1988); Bernard Schwartz, "Shooting the Piano Player?": Justice Scalia and Administrative Law, <I>47 Admin. L. Rev. 1, 56 (1995)</I> (suggesting that Scalia would "turn back the administrative law clock to the days" before the birth of the modern administrative agency).</div> <div> n8. See David Luban, Legal Traditionalism, <I>43 Stan. L. Rev. 1035, 1045 (1991)</I> (arguing that Scalia's approach is motivated by a conservative wish to limit the ability of the Court to reinterpret tradition); A.C. Pritchard & Todd J. Zywicki, Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation, <I>77 N.C. L. Rev. 409 (1999)</I> (examining and comparing Scalia's use of tradition with Justice Souter's).</div> <div> n9. See infra notes 152-59 and accompanying text.</div> <div> n10. See infra notes 189-95 and accompanying text.</div> <div> n11. See infra notes 227-28 and accompanying text.</div> <div> n12. See infra note 235 and accompanying text.</div> <div> n13. Monkey Business was the name of the private yacht on which Gary Hart and Donna Rice traveled to the Caribbean island of Bimini during their affair. See Shapiro, supra note 4, at 16.</div> <div> n14. See Peter B. Edelman, Justice Scalia's Jurisprudence and the Good Society: Shades of Felix Frankfurter and the Harvard Hit Parade of the 1950's, <I>12 Cardozo L. Rev. 1799, 1799-1800 (1991).</I> But see William D. Popkin, An "Internal" Critique of Justice Scalia's Theory of Statutory Interpretation, <I>76 Minn. L. Rev. 1133, 1151 (1992)</I> (suggesting that Justice Frankfurter's and Justice Scalia's methods of statutory interpretation are quite different).</div> <div> n15. See Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, <I>74 B.U. L. Rev. 25, 48 (1994).</I></div> <div> n16. See George Kannar, Comment, The Constitutional Catechism of Antonin Scalia, <I>99 Yale L.J. 1297, 1309-20 (1990).</I> But see Donald L. Beschle, Catechism or Imagination: Is Justice Scalia's Judicial Style Typically Catholic?, <I>37 Vill. L. Rev. 1329, 1346-53 (1992).</I> See generally Peter A. Lauricella, Chi Lascia La Via Vecchia Per La Nuova Sa Quel Che Perde E Non Sa Quel Che Trova: The Italian-American Experience and Its Influence on the Judicial Philosophies of Justice Antonin Scalia, Judge Joseph Bellacosa, and Judge Vito Titone, <I>60 Alb. L. Rev. 1701 (1997).</I></div> <div> n17. See Reisman, supra note 7, at 49, 78.</div> <div> n18. See Thomas C. Power, Must Carry, Carry On? Turner Broadcasting System v. F.C.C., Ent. & Sports Law., Summer 1994, at 9, 10.</div> <div> n19. See Jeffrey Rosen, Originalist Sin, New Republic, May 5, 1997, at 26, 27; see also S.I. Strong, Justice Scalia as a Modern Lord Devlin: Animus and Civil Burdens in Romer v. Evans, <I>71 S. Cal. L. Rev. 1, 9 (1997)</I> (arguing that Scalia's assertion "that animus towards disfavored groups can act as permissible basis for law is not only contrary to established constitutional principles but to a number of jurisprudential norms").</div> <div> n20. This versatile parable has been used to describe tax policy, see <I>Mississippi Chemical Corp. v. United States, 431 F.2d 1320, 1327 (5th Cir. 1970)</I> (Gobold, J., dissenting); comatose patients, see Scott C. Idleman, Note, The Role of Religious Values in Judicial Decision Making, <I>68 Ind. L.J. 433, 442 n.27 (1993);</I> and community associations, see Marvin J. Nodiff, Decision-Making in the Community Association: Do the Old Rules Still Apply?, <I>52 J. Mo. B. 141, 150 (1996);</I> see also Pierre Schlag, Hiding the Ball, <I>71 N.Y.U. L. Rev. 1681, 1692-96 (1996)</I> (discussing the appeal of this parable). I say that the parable is "much abused" because its original moral usually is misstated. American commentators use the story to illustrate errors that result from studying only a part of a problem. They then claim that their analysis is correct because it views the problem from the proper perspective. However, at the end of the Nepalese version of the folk tale, the blind men ultimately decide that an animal with such diverse characteristics cannot exist and therefore must be ""legendary [such] as the unicorn or the griffin.' ... [Thus,] they would forbid all discussion of the elephant to avoid [the] arguments, the friction, and the waste of time." Edmund C. Berkeley, The Six Blind Men of Nepal, in Ride the East Wind: Parables of Yesterday and Today 100, 110 (1973). The original tale had six blind men, not three. Id. at 110.</div> <div> n21. Beschle, supra note 16, at 1335; see also id. at 1338 n.48 (listing those who praise Scalia); Kramer, supra note 7, at 1789 (agreeing that with a few notable exceptions, Scalia appears to follow a "self-consciously articulated judicial philosophy"); Cornelius M. Murphy, Justice Scalia and the Confrontation Clause: A Case Study in Originalist Adjudication of Individual Rights, <I>34 Am. Crim. L. Rev. 1243, 1258 (1997)</I> ("Scalia's approach to the Confrontation Clause is an admirable example of judicial consistency and intellectual honesty ...."); David Boling, Comment, The Jurisprudential Approach of Justice Antonin Scalia: Methodology Over Result?, <I>44 Ark. L. Rev. 1143, 1204 (1991)</I> (claiming that Scalia gets close to the idea of being unconcerned with the outcome of a case, but questioning a few of Scalia's decisions nonetheless).</div> <div> n22. See Maureen Squires, Scalia Urges Inflexible Constitution: Supreme Court Justice Scoffs at Notion of a Changing Constitution, Peoria J. Star, Oct. 25, 1996, at C11, available in <I>1996 WL 6982219.</I></div> <div> n23. See Scalia, supra note 7, at 3, 8.</div> <div> n24. See infra note 59 and accompanying text.</div> <div> n25. Antonin Scalia, The Rule of Law as a Law of Rules, <I>56 U. Chi. L. Rev. 1175, 1175 (1989).</I> [hereinafter Scalia, The Rule of Law].</div> <div> n26. Antonin Scalia, Originalism: The Lesser Evil, <I>57 U. Cin. L. Rev. 849, 863 (1989).</I> [hereinafter Scalia, Originalism].</div> <div> n27. See <I>id. at 864.</I></div> <div> n28. <I>Id. at 855.</I></div> <div> n29. See Cass Sunstein, Justice Scalia's Democratic Formalism, <I>107 Yale L.J. 529, 562 (1997);</I> see also <I>James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991)</I> (Scalia, J., concurring) ("[Judicial power] must be deemed to be the judicial power as understood by our common-law tradition. That is the power to say "what the law is,' not the power to change it.") (citation omitted).</div> <div> n30. See H. Jefferson Powell, The Original Understanding of Original Intent, <I>98 Harv. L. Rev. 885, 903 (1985);</I> Rosen, supra note 19, at 29 (stating that originalism sometimes leads to "the common law constitutionalism that Scalia wants to avoid").</div> <div> n31. See Sunstein, supra note 29, at 530.</div> <div> n32. Objecting to the Court's invalidation of an anti-gang loitering ordinance, Scalia wrote, "in our democratic system, how much harmless conduct to proscribe is not a judgement to be made by the courts." <I>City of Chicago v. Morales, 119 S. Ct. 1849, 1879 (1999)</I> (Scalia, J., dissenting). See also Alexander Bickel, The Least Dangerous Branch 16-23 (2d ed. 1968); Jerry Mashaw, Greed, Chaos, and Governance 201-02 (1997); Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty, <I>145 U. Pa. L. Rev. 759, 789 (1997);</I> Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, <I>85 Geo. L.J. 1765, 1818-19 (1997).</I></div> <div> While Scalia does not refer to the countermajoritarian difficulty by name in his speeches or opinions, scholars generally agree that this is a fair label for his philosophy of judicial review. See Gerhardt, supra note 15, at 29 n.13 (noting that Justice Scalia does not use "the term "countermajoritarian difficulty' to refer to the problem that [he] has identified as the central dilemma in constitutional adjudication"); see also William N. Eskridge, Jr., Democracy, Kulturkampf, and the Apartheid of the Closet, <I>50 Vand. L. Rev. 419, 421 (1997)</I> (contending that the Constitution and original design offer little support for "Scalia's strong invocation of the "countermajoritarian difficulty'" in <I>Romer v. Evans, 517 U.S. 620, 644 (1996));</I> Larry Kramer, Same-Sex Marriage, Conflict of Law, and the Unconstitutional Public Policy Exception, <I>106 Yale L.J. 1965, 1991 (1997)</I> (arguing that Scalia's use of long-standing tradition to hold that a practice long permitted cannot now be unconstitutional is a variation of the countermajoritarian difficulty but is even stronger in the sense that "Scalia offers continuous usage as a sort of popular reaffirmation that makes judicial interference even tougher to justify"); Carlin Meyer, Imbalance of Powers: Can Congressional Lawsuits Serve as Counterweight?, <I>54 U. Pitt. L. Rev. 63, 116 (1992)</I> (noting that Scalia's countermajoritarianism leads to his narrow reading of liberty for due process purposes). Larry Kramer, Same-Sex Marriage, Conflicts of Law, and the Unconstitutional Public Policy Exception, <I>106 Yale L.J. 1965, 1991 (1997)</I> (arguing that Scalia's use of long standing tradition to hold that a practice long permitted cannot now be unconstitutional is a variation of the countermajoritarian difficulty but is even stronger in the sense that "Scalia offers continuous usage as a sort of popular reaffirmation that makes judicial interference even tougher to justify.").</div> <div> n33. See Tracy Breton, Scalia: Let the Constitution Stand, Prov. J. Bull., May 21, 1997, at B1 ("Scalia said that every time a judge reads things into the Constitution or Bill of Rights that are not specifically enumerated there, "you are taking something out of the democratic process.'").</div> <div> n34. Eric J. Segall, Justice Scalia, Critical Legal Studies, and the Rule of Law, <I>62 Geo. Wash. L. Rev. 991, 1006 (1994).</I></div> <div> n35. Pritchard & Zywicki, supra note 8, at 430; see Michael W. McConnell, The Role of Democratic Politics in Transforming Moral Convictions into Law, <I>98 Yale L.J. 1501, 1538 (1989)</I> (book review) (arguing against judges' making overtly legislative decisions); see also Gregory C. Cook, Note, Footnote 6: Justice Scalia's Attempt to Impose a Rule of Law on Substantive Due Process, <I>14 Harv. J.L. & Pub. Pol'y 853, 865-66 (1991)</I> (arguing against judges' making legislative decisions).</div> <div> n36. See <I>Lewis v. Casey, 518 U.S. 343, 362 (1996)</I> (Scalia writing for the majority stated that "the injunction imposed by the District Court was inordinately - indeed, wildly - intrusive.... It is the ne plus ultra of what our opinions have lamented as a court's "in the name of the Constitution, becoming ... enmeshed in the minutiae of prison operations.'"); <I>Carlisle v. United States, 517 U.S. 416, 426 (1996)</I> (speaking for the majority, Scalia rejected the district court's attempt to enter an untimely judgment of acquittal not permitted under Federal Rules of Criminal Procedure); <I>Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 815 (1994)</I> (Scalia, J., concurring in part, dissenting in part) (describing a "misguided trial-court injunction" permitted by the Court as a "powerful loaded weapon lying about"); <I>UMW v. Bagwell, 512 U.S. 821, 842 (1994)</I> (Scalia, J., concurring) (criticizing contemporary courts that "routinely issue complex decrees which involve them in extended disputes and place them in continuing supervisory roles over parties and institutions" without historical foundation); <I>Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 106-07 (1993)</I> (Scalia, J., concurring) (supporting "traditional view ... that prospective decision making is quite incompatible with the judicial power" and is clearly a "practical tool of judicial activism"); see also <I>Post, supra </I>note 5, at 59 ("Mistrust of courts, however, is a theme that also emerges in Scalia's theory of constitutional interpretation."); David M. Zlotnick, Battered Women & Justice Scalia, <I>41 Ariz. L. Rev. 847, 914 (1999)</I> (citing cases demonstrating Scalia's hostility to judicial contempt power).</div> <div> n37. See <I>Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 119 S. Ct. 1961, 1970 (1999)</I> (holding that Congress, not the federal courts, is proper forum to create new injunctive relief for creditors); see also Richard A. Brisbin, Jr., Justice Antonin Scalia & the Conservative Revival 60, 92 (1997). Scalia's fear of judicial usurpation is likely the impetus for his rigid approach to the separation of powers principle. See <I>Mistretta v. United States, 488 U.S. 361, 425 (1989)</I> (Scalia, J., dissenting); <I>Morrison v. Olson, 487 U.S. 654, 705 (1988)</I> (Scalia, J., dissenting); David A. Schultz & Christopher E. Smith, The Jurisprudential Vision of Antonin Scalia 84-85 (1996) (contending that aside from his rejection of affirmative action, Scalia's dedication to the doctrine of separation of powers may be his strongest doctrinal commitment).</div> <div> n38. See <I>Neder v. United States, 119 S. Ct. 1827, 1845 (1999)</I> (Scalia, J., concurring in part, dissenting in part) (contending that it is always structural constitutional error when a judge fails to submit an element of an offense to the jury because the Constitution requires juries, not courts, to make a determination of guilt). Chief Justice Rehnquist, writing for the majority, held that failure to instruct on materiality in a federal fraud case could be constitutional harmless error. <I>Id. at 1839</I> (majority opinion).</div> <div> n39. See Segall, supra note 34, at 1004 (noting that Scalia's methods are shaped by the countermajoritarian difficulty); see also supra note 32 and accompanying text.</div> <div> n40. But see Sunstein, supra note 29, at 540 (arguing that Scalia has not subjected his methodology to empirical testing; thus, "he has not shown that his approach is preferable to reasonable alternatives").</div> <div> n41. See <I>City of Chicago v. Morales, 119 S. Ct. 1849, 1871 (1999)</I> (Scalia, J., dissenting) (claiming that facial challenges to a statute's constitutionality are incompatible with both separation of powers doctrine and the case or controversy requirement, and also criticizing frequency with which exceptions to this doctrine are made on "hot-button social issues on which "informed opinion' was zealously united"); see also <I>County of Sacramento v. Lewis, 523 U.S. 833, 865 (1998)</I> (Scalia, J., concurring) ("But for judges to overrule that democratically adopted policy judgment on the grounds that it shocks their consciences is not judicial review but judicial governance."); <I>United States v. Virginia, 518 U.S. 515, 566 (1996)</I> (Scalia, J., dissenting); <I>Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992)</I> (Scalia, J., concurring in part, dissenting in part).</div> <div> n42. <I>497 U.S. 261, 292</I> (Scalia, J., concurring).</div> <div> n43. <I>Id. at 300-01</I> (emphasis added).</div> <div> n44. See <I>Constitutional Law Conference, 60 U.S.L.W. 2253, 2263</I> (U.S. Oct. 22, 1991) (summarizing views of scholars who argue that Scalia believes "balancing tests and the like destroy the Constitution as a document of law, and make it a policy vehicle"); Justice Scalia Guest Speaker at Miss. School, Baton Rouge Advoc., Apr. 9, 1998, at 9B, available in <I>1998 WL 4894845</I> ("He fears such a philosophy will destroy the Constitution.").</div> <div> n45. See, e.g., <I>United States v. Virginia, 518 U.S. at 567</I> (Scalia, J., dissenting).</div> <div> n46. Scalia, supra note 7, at 4-9.</div> <div> n47. Id. at 7.</div> <div> n48. See id. at 40; see also Scalia, supra note 25, at 1178.</div> <div> n49. See Newcomer, supra note 5, at 17A.</div> <div> n50. See id.</div> <div> n51. In <I>Romer v. Evans, 517 U.S. 620 (1996),</I> Scalia accused the majority of "imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity' toward homosexuality ... is evil." <I>Id. at 636</I> (Scalia, J., dissenting). He added,</div> <bR> <div> when the Court takes sides in the culture wars, it tends to ... reflect[ ] the views and values of the lawyer class .... How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; ... because he eats snails; because he is a womanizer; because she wears real-animal fur .... But if the interviewer should wish not to [hire] an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge ... require[d from] all [of the National Association for Law Placement's] member-schools ....</div> <bR> <div>  <I>Id. at 652-53.</I></div> <div> n52. Justice Scalia is a Harvard Law School graduate and also served as a law professor at the University of Virginia and the University of Chicago. See Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 Envtl. L. 1439, 1485 n.210 (1994).</div> <div> n53. Scalia argues that his ancestors never oppressed anyone; therefore, white descendants of immigrants such as himself should not be forced to suffer disadvantages based on the wrongs of earlier American generations or the guilt felt by their policy-making descendants. See Antonin Scalia, The Disease As Cure: "In Order To Get Beyond Racism, We Must First Take Account of Race," <I>47 Wash. U. L.Q. 147, 152 (1979).</I> But see Dwight L. Greene, Justice Scalia and Tonto: Judicial Pluralistic Ignorance and the Myth of Colorless Individualism in Bostick v. Florida, <I>67 Tul. L. Rev. 1929 (1993).</I></div> <div> n54. James S. Kunen & Viveca Novak, One Angry Man: Even on a Conservative Court, Antonin Scalia Manages to Seem Embattled, Time, July 8, 1996, at 10.</div> <div> n55. Id.</div> <div> n56. Moreover, if we recognize the personal nature with which Scalia presses his points, any excesses we find in his analysis might properly be attributed to emotional zeal rather than to a failure of his vaunted intellect. See Beschle, supra note 16, at 1358 (noting that Scalia is respected for his wit and his intellect). But see Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, <I>76 Tex. L. Rev. 267, 314 (1997)</I> (arguing that Scalia's "astonishing rigidity ... especially his fear of unconstrained judgment ... [cries] out for psychoanalytic explanations"); Richard Cohen, Justice Scalia and the "Worldly Wise," Wash. Post, Apr. 12, 1996, at A25 (asserting that Scalia has read so often how smart he is that he has come to believe it).</div> <div> n57. Gordon S. Wood, Comment, in A Matter of Interpretation, supra note 7, at 50.</div> <div> n58. I do not maintain, however, that Scalia's personal alienation is the lodestone that explains his entire jurisprudence (or that the scholarly suppositions that attribute his motives to Catholicism, Anglicanism or a political "-ism" are devoid of merit). In fact, some critics contend that Scalia has no need to manipulate his methodology because it is biased in favor of returning conservative outcomes. See infra note 143 and accompanying text.</div> <div> n59. Gerhardt, supra note 15, at 30 n.18 (citing Dan Izenberg, Clinging to the Constitution, Jerusalem Post, Feb. 19, 1990 (quoting Scalia)). To Scalia, judges should not "determine what seems like good policy at the present time, but ... ascertain the meaning of the text." Kannar, supra note 16, at 1303 (quoting Justice Antonin Scalia, Remarks at the 24th Australian Legal Convention 12 (Sept. 21, 1987)).</div> <div> n60. Scalia, supra note 26, at 854.</div> <div> n61. Scalia mischaracterizes and then dismisses indeterminacy theory in his Originalism article. Id. at 856 ("Not that I agree with, or even take very seriously, the intricately elaborated scholarly criticisms to the effect that (believe it or not) words have no meaning."). Actually, the hermeneutic position is that words have multiple meanings, and that especially for later generations, it is impossible to be certain that one has placed oneself fully in the interpretative shoes of the earlier generation. See infra notes 163-67 and accompanying text. Furthermore, Scalia and the hermeneuticians are actually in agreement that the text alone is often insufficient to ascertain meaning for the broader phrases of the Constitution. See infra notes 169-70 and accompanying text.</div> <div> n62. Scalia, supra note 26, at 856. Scalia has asserted that "while the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible." Scalia, supra note 7, at 24.</div> <div> n63. Scalia accepts Dworkin's label of "semantic intention" to describe his textualism, although, of course, they disagree on what it means and who is more faithful to its terms. See Antonin Scalia, Response, in A Matter of Interpretation, supra note 7, at 129, 144.</div> <div> n64. Kannar traces the roots of Scalia's textualism to his pre-Vatican II Catholic education and his father's textualist approach to translation as a Romance language scholar. See Kannar, supra note 16, at 1313-19. Professor Beschle's subsequent article, comparing Scalia's jurisprudence to Anglican theology, suggests the Catholic component of the Kannar's theory may be tenuous. See Beschle, supra note 16, at 1346-53.</div> <div> n65. See Kannar, supra note 16, at 1307 (noting Scalia's enormous confidence in textualism).</div> <div> n66. Id. at 1307-08. Kannar adds that this formalistic version of textualism harkens back both to a Nineteenth Century view of language and a more recent but still superseded version of literary criticism. Id.</div> <div> n67. See, e.g., <I>Walton v. Arizona, 497 U.S. 639, 671 (1990)</I> (Scalia, J., concurring in part, concurring in the judgment) (suggesting that the "and" in the Eighth Amendment requires that punishments be both cruel and unusual to violate the text). According to Kannar, Scalia believes a semantically based textualism serves to minimize a judge's "interpretive discretion and the influence of social, political, or moral context, except as that context has made its way directly into the "ordinary meaning' of relevant, legally operative words." Kannar, supra note 16, at 1308.</div> <div> n68. Kannar, supra note 16, at 1316, 1308. In Common-Law Courts, Scalia appears to agree and willingly embraces the charge of formalism. Scalia, supra note 7, at 25, 144 ("Of course it's formalistic. The rule of law is about form."). Critics argue that Scalia's desperate pursuit of a single clear meaning for the text dismisses any interpretive role for the underlying principles, philosophy, and even the true intent of the document's drafters. For example, Scalia's textualism ignores the possibility that the Framers intended the aspirational phrases in the Constitution to be reinterpreted by future generations. See Ronald Dworkin, Comment, in A Matter of Interpretation, supra note 7, at 115, 122; see also infra notes 153-58 and accompanying text.</div> <div> n69. Compare <I>Coy v. Iowa, 487 U.S. 1012, 1021 (1988)</I> (focusing solely on the "irreducible literal meaning" of the Confrontation Clause and admitting no exceptions), with <I>id. at 1026</I> (Blackmun, J., dissenting) (looking first to the Framers' "primary object" for the clause).</div> <div> n70. See <I>Holloway v. United States, 119 S. Ct. 966, 972-73 (1999)</I> (Scalia, J., dissenting) (focusing on "customary English usage" of the word "intent" and quoting Black's Law Dictionary). In an analysis similar to the constitutional critique, one commentator suggests that Scalia's textualist approach to statutory interpretation "requires that to determine what the statute means the judge put on blinders that shield the legislative purpose from view." Popkin, supra note 14, at 1142; see also <I>West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 113 (1991)</I> (Stevens, J., dissenting) (arguing the literalist's approach to statutes calls for using "thick grammarian's spectacles" and "ignoring the available evidence of congressional purpose").</div> <div> n71. See <I>Chisom v. Roemer, 501 U.S. 380, 410 (1991)</I> (Scalia, J., dissenting) (citing Webster's Dictionary on the meaning of "representatives" to exclude elected judges from Voting Rights Act). His well-known refusal to consider legislative history also is related to his overly confident textualist thinking. If he viewed text more ambiguously, it would be more difficult to cast out this promising source of additional information about the intended meaning of a statute. See supra notes 60-62 and accompanying text.</div> <div> n72. See <I>Department of Commerce v. United States House of Rep., 119 S. Ct. 765, 781 (1999)</I> (Scalia, J., concurring) ("Dictionaries roughly contemporaneous with the ratification of the Constitution demonstrate that "enumeration' requires an actual counting, and not just an estimation of number."); <I>National Endow-ment for the Arts v. Finley, 524 U.S. 569, 595 (1998)</I> (Scalia, J., concurring in part, concurring in the judgment) (using a 1796 dictionary to define "abridging" to determine if statute violated freedom of speech guarantee in the First Amendment).</div> <div> n73. <I>499 U.S. 621 (1991).</I></div> <div> n74. See <I>United States v. Mendenhall, 446 U.S. 544, 554 (1980).</I></div> <div> n75. <I>Hodari D., 499 U.S. at 624.</I></div> <div> n76. See id. (stating that "from the time of the founding to the present, the word "seizure' has meant a "taking possession'") (citing 2 N. Webster, An American Dictionary of the English Language 67 (1828); 2 J. Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster's Third New International Dictionary 2057 (1981)).</div> <div> n77. See, e.g., <I>Coy v. Iowa, 487 U.S. 1012, 1016-17 (1988)</I> (concluding that the Confrontation Clause requires a "face-to-face" meeting, citing the Latin derivation of "confrontation," as well as William Shakespeare, Richard II act. I., sc.1, and President Eisenhower's description of his hometown code of Abilene, Kansas.).</div> <div> n78. See <I>Lilly v. Virginia, 119 S. Ct. 1887, 1903 (1999)</I> (Scalia, J., concurring in part, concurring in the judgment) (arguing that the use of pre-trial tape recorded statement of accomplice after accomplice invoked the Fifth Amendment privilege was "a paradigmatic Confrontation Clause violation"); <I>City of Chicago v. Morales, 119 S. Ct. 1849, 1872 (1999)</I> (Scalia, J., dissenting) (failing to find a constitutional right to "loiter" that Scalia argues was the underlying basis of the majority opinion); <I>Mitchell v. United States, 119 S. Ct. 1307, 1316 (1999)</I> (Scalia, J., dissenting) (arguing that the text of the Fifth Amendment prohibits only "compelling" a person to testify against him or herself, and not "one of the natural (and not governmentally imposed) consequences of failing to testify ... the factfinder's increased readiness to believe the incriminating testimony that the defendant chooses not to contradict"); <I>Minnesota v. Carter, 119 S. Ct. 469, 474-75 (1998)</I> (Scalia, J., concurring) (arguing that use of the word "their" in the Fourth Amendment limits protection to the owner of the property). Dissenting in Maryland v. Craig, Scalia again argued that the meaning of "confrontation" in the Sixth Amendment must include a "face-to-face" meeting. <I>Maryland v. Craig, 497 U.S. 836, 862 (1990)</I> (Scalia, J., dissenting) (quoting <I>Coy v. Iowa, 487 U.S. 1012, 1015 (1988)</I> (in turn quoting <I>California v. Green, 399 U.S. 149, 175 (1970)</I> (Harlan, J., concurring))).</div> <div> n79. See Kannar, supra note 16, at 1306 (citing Justice Antonin Scalia, Remarks at the 24th Australian Legal Convention 12 (Sept. 21, 1987)).</div> <div> n80. See, e.g., <I>Ohio v. Akron Center for Reprod. Health, 497 U.S. 502, 520 (1990);</I> <I>Hodgson v. Minnesota, 497 U.S. 417, 480-84 (1990).</I></div> <div> n81. See <I>Department of Commerce v. United States House of Rep., 119 S. Ct. 765, 781 (1999)</I> (Scalia, J., concurring in part) (suggesting that text and historical practices require an actual counting of the census).</div> <div> n82. Nevertheless, semantic textualism is the core of the methodology. Thus, while historical analysis supplements the textualist's desire to understand "the text of the document and what it meant to the society that adopted it," for Scalia, the text is always "the starting point and beginning of wisdom." Hearings on the Nomination of Judge Antonin Scalia Before the Senate Comm. on the Judiciary, 99th Cong. 108 (1986). Scalia acknowledges, however, that "textualism is not ironclad protection against the judge who wishes to impose his will, but it is some protection." Scalia, supra note 7, at 132.</div> <div> n83. James A. Gardner, The Positivist Foundations of Originalism: An Account and Critique, <I>71 B.U. L. Rev. 1, 3 (1991).</I></div> <div> n84. Paul Horwitz, The Past, Tense: The History of Crisis - And the Crisis of History - In Constitutional Theory, <I>61 Alb. L. Rev. 459, 472 (1997)</I> (reviewing Laura Kalman, The Strange Career of Legal Liberalism (1996)).</div> <div> n85. Hearings, supra note 82, at 108 (1986) ("If somebody should discover that the secret intent of the framers was quite different from what the words seem to connote, it would not make a difference.").</div> <div> n86. Id.</div> <div> n87. Classic "original intent" theory places heavy reliance on the statements and writings of the individual framers: what might be called, in essence, the legislative history of the Constitution. See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, <I>71 Chi.-Kent L. Rev. 909, 913 (1996).</I></div> <div> n88. Scalia, supra note 7, at 38. Understood this way, Scalia's "original meaning" approach to con-stitutional law can be somewhat reconciled with his view that legislative history should be irrelevant to statutory interpretation. In both instances, it is the final textual product that controls, not the thoughts or actions leading up to the deliberative body's decision. Scalia has said so himself: "What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended." Id. It is only the added difficulty of interpreting a two-hundred-year-old text that allows Scalia to seek confirmation in historical sources for the original meaning.</div> <div> n89. Scalia, supra note 26, at 856-57.</div> <div> n90. See <I>Wyoming v. Houghton, 119 S. Ct. 1297, 1300 (1999)</I> ("In determining whether a particular governmental action violates this provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed.").</div> <div> n91. See <I>Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1991).</I></div> <div> n92. See <I>City of Chicago v. Morales, 119 S. Ct. 1849, 1872 (1999)</I> (Scalia, J., dissenting) (citing the "vast historical tradition of criminalizing" loitering and stating that "there is not the slightest evidence for the existence of a genuine constitutional right to loiter"); 44 <I>Liquormart v. Rhode Island, 517 U.S. 484, 517 (1996)</I> (Scalia, J., concurring in the judgment, dissenting in part); <I>Planned Parenthood v. Casey, 505 U.S. 833, 980 n.1 (1992)</I> (Scalia, J., concurring in the judgment, dissenting in part).</div> <div> n93. For example, in <I>Lee v. Weisman, 505 U.S. 577 (1992),</I> Justice Scalia dissented from a decision upholding a First Amendment challenge to religious invocations at public school ceremonies, claiming that such invocations had a long historical pedigree. Scalia said that "in holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste to a tradition that is as old as public-school graduation ceremonies themselves." <I>Id. at 631-32</I> (1992) (Scalia, J., dissenting); see also <I>Mitchell v. United States, 119 S. Ct. 1307, 1316-18 (1999)</I> (Scalia, J., dissenting) (asserting historical practices suggest that "traditionally, defendants were expected to speak rather extensively at both the pretrial and trial stages of a criminal proceeding" and that, therefore, the use of the defendant's silence at sentencing against him should be permitted); <I>Clinton v. New York, 524 U.S. 417, 466-69 (1998)</I> (Scalia, J., concurring in part, dissenting in part) (discussing why history and tradition support line item veto legislation); <I>Rutan v. Republican Party, 497 U.S. 62, 96 (1990)</I> (Scalia, J., dissenting) (defending the political patronage system).</div> <div> n94. See <I>Casey, 505 U.S. at 984.</I></div> <div> n95. See 44 Liquormart, 517 U.S. at 517 (criticizing parties for failure to discuss historical evidence regarding Framers' view of commercial speech).</div> <div> n96. Even when a historical inquiry yields "no answer," Scalia insists on finding some historical reference point. In the Fourth Amendment context, he has argued that issues should be evaluated "under traditional standards of reasonableness" and by making whatever historical analogies are possible, for example, extrapolating the traditional search and seizure rules for ships to modern transportation such as automobiles. <I>Wyoming v. Houghton, 119 S. Ct. 1297, 1300 (1999).</I> Compare <I>id. at 1304</I> (Breyer, J., concurring) ("History is meant to inform, but not automatically determine, the answer to a Fourth Amendment question.").</div> <div> n97. Scalia, supra note 26, at 856-57.</div> <div> n98. <I>491 U.S. 110 (1989)</I> (plurality opinion).</div> <div> n99. See <I>id. at 113.</I></div> <div> n100. See <I>id. at 158-60</I> (White, J., dissenting); see also Lawrence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, <I>57 U. Chi. L. Rev. 1057, 1086, 1103 n.172 (1990).</I></div> <div> n101. <I>Michael H., 491 U.S. at 125</I> (citations omitted); see also <I>Houghton, 119 S. Ct. at 1300</I> (discussing the common law roots of "warrantless search of containers within an automobile").</div> <div> n102. <I>Michael H., 491 U.S. at 127-28 n.6.</I> Scalia later tried to distance himself from this clear statement that the most specific historical practice is the touchstone for his originalism. In his dissent in <I>Planned Parenthood v. Casey, 505 U.S. 833 (1992),</I> Scalia argued that the majority misrepresented his Michael H. opinion to mean "that "liberty' includes "only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.'" Id. at 981 (Scalia, J., concurring in the judgment and dissenting in part). Scalia insisted that footnote 6 in Michael H. was no more than an observation that "in defining "liberty,' we may not disregard a specific, "relevant tradition protecting, or denying protection to the asserted right.'" Id. at 981. While Scalia may not have liked this characterization, it does appear to accurately describe his analysis in Michael H. and other cases. See, e.g., <I>County of Sacramento v. Lewis, 523 U.S. 833, 862 (1998)</I> (Scalia, J., concurring in the judgment) ("I would ask whether our Nation has traditionally protected the right[ ] asserted.") (citation omitted).</div> <div> n103. See <I>Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 451-54 (1996)</I> (Scalia, J., dissenting) (discussing the history of appellate review); <I>Lee v. Weisman, 505 U.S. 577, 633-34 (1992)</I> (Scalia, J., dissenting) (examining the historical pedigree of incorporation of prayer into public ceremonies); <I>California v. Hodari D., 499 U.S. 621, 624 (1991)</I> (discussing the connotation of the word "seize" and its import at the time of ratification).</div> <div> n104. As a practical matter, Scalia acknowledges the difficulties of applying it correctly: the need for an "enormous mass" of materials of often questionable reliability and the discipline to put on the "beliefs, attitudes and philosophies, prejudices and loyalties" of an "earlier age." Scalia, supra note 26, at 856-57. These tasks, Scalia recognizes, are "sometimes better suited to the historian than the lawyer." Id.</div> <div> n105. See Scalia, supra note 7, at 45. All too often, unfortunately, Scalia's historical assertions remain unchallenged by other Justices, who prefer to contest him on a higher theoretical plane. Compare <I>Michael H., 491 U.S. at 124-26,</I> with <I>id. at 139</I> (Brennan, J., dissenting).</div> <div> n106. Originalism, "in its undiluted form, at least, ... is medicine that seems too strong to swallow," and therefore, "in a crunch I may prove to be a faint-hearted originalist." Scalia, supra note 26, at 861, 864. Scalia also is willing to "adulterate" originalism with the doctrine of stare decisis. Id. at 861. Accepting the notion that stare decisis lies outside originalism, this Article will examine the impact of this exception as part of the critique of his methodology. See infra notes 184-86 and accompanying text.</div> <div> n107. Scalia, supra note 26, at 864. Scalia, however, is rarely faced with this challenge because by the time of his appointment, many historically-based rules had been overturned by the Warren and Burger Courts. By refusing to re-examine many of these decisions to determine if they meet his faint-hearted criteria, Scalia does not have to confront a variety of harsh historical practices that he might otherwise be obligated to uphold under his methodology. As discussed later, because he has no clear rule for rejecting precedents that run counter to the precepts of his methodology, Scalia also creates a window through which his preferences can reenter. See infra notes 185-87 and accompanying text.</div> <div> n108. Scalia, supra note 26, at 861.</div> <div> n109. Scalia argues that to permit judges to make nuanced decisions about the level of societal change necessary to shrug off the constraints of history invites personal values back into the process. Thus, he prefers to err on the side of restraint - in his words, to be the "librarian who talks too softly." Id. at 864; see also <I>Montana v. Egelhoff, 518 U.S. 37, 48 (1996)</I> (declining to adopt a "new common-law" rule that would allow intoxication to be considered in determining specific intent, because such a rule is inconsistent with historical practices); <I>Thompson v. Oklahoma, 487 U.S. 815, 865 (1988)</I> (Scalia, J., dissenting) (focusing on objective signs such as legislation to assess the evolution of society's views towards punishing minors as adults).</div> <div> n110. Scalia, supra note 26, at 861-62.</div> <div> n111. For example, in <I>Pacific Life Insurance Co. v. Haslip, 499 U.S. 1 (1991),</I> Scalia dissented on the grounds that "punitive damages assessed under common-law procedures are far from a fossil, or even an endangered species." <I>Id. at 39</I> (Scalia, J., dissenting).</div> <div> n112. Scalia uses the Fourth Amendment's "reasonableness" requirement as an example of constitutional language that calls for clarification by the Court and suggests that "the path out of this confusion" is to regard the reasonableness requirement as affording protection where it was afforded at common law. <I>California v. Acevedo, 500 U.S. 565, 583 (1991)</I> (Scalia, J., concurring in the judgment).</div> <div> n113. See Duncan Kennedy, Form and Substance in Private Law Adjudication, <I>89 Harv. L. Rev. 1685, 1687-89 (1976)</I> (citing Rudolf von Ihering, Der Geist Des R<um o>mischen Recht 50-55 (1883)).</div> <div> n114. <I>Id. at 1687-88;</I> see also Shael Herman, The "Equity of the Statute" and Ratio Scripta: Legislative Interpretation Among Legislative Agnostics and True Believers, <I>69 Tul. L. Rev. 535 (1994).</I> To use von Ihering's example, a rule to determine legal competency solely by reference to age is a "formally realizable" rule because the question of age is easily ascertained. See Kennedy, supra note 113, at 1688 (citing Rudolf von Ihering, Der Geist Des R<um o>mischen Recht 51-56 (1883)); Segall, supra note 34, at 997-99. But see Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, <I>84 Nw. U. L. Rev. 250, 250-51 (1989).</I></div> <div> n115. Kathleen Sullivan, Foreword: The Justices of Rules and Standards, <I>106 Harv. L. Rev. 22, 58-59 (1992).</I> See generally Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rules Based Decision Making in Law and in Life 104 n.35 (1991); Margaret Jane Radin, Reconsidering the Role of Law, <I>69 B.U. L. Rev. 781, 795 (1989);</I> Pierre Schlag, Rules and Standards, <I>33 UCLA L. Rev. 379, 399-401 (1985).</I></div> <div> n116. Scalia, supra note 25. The concept of the rule of law embraces more than the need for clear rules. In essence, "the law must be capable of guiding the behavior of its subjects," Joseph Raz, The Role of Law and Its Virtue, in The Authority of Law 210, 214 (1979), but should not be so determinate that "errors of under-and over-inclusiveness" occur. Sullivan, supra note 115, at 58.</div> <div> n117. Scalia, supra note 25, at 1180. Scalia also stated that general rules control even if the "the next case should have such different facts that my political or policy preferen