SCALIA IS A HYPOCRITE

In his book, A Matter of Interpretation (1997), Justice Scalia, a self-proclaimed originalist who denies being a strict contructionist, wrote:




In a speech Justice Scalia delivered at the Woodrow Wilson International Center for Scholars on March 14, 2005, and broadcast by C-Span, Judge Scalia stated the following:



Now, let's look at the language--the TEXT--of the due process clauses in the Fifth Amendment and the Fourteenth Amendment:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


According to Scalia, we are required to interpret the text REASONABLY, to contain ALL that "due process of law" FAIRLY meant when the text was adopted.

What did "due process of law" mean when our predecessors stuck that language in our constitution? Didn't it mean fairness? Didn't it mean that the law of the land demands fairness not only in HOW the government deprives us of our lives, liberty, and property, but also as to WHY the government is doing so?

No state shall deprive any person of life, liberty, or property without procedural and substantive fairness in accordance with the law of the land. Due process of law embraces the entire universe of substantive and procedural reasonableness and fairness and abhors unreasonableness and unfairness.

Can anyone, with a straight face, assert that our forefathers, (the "give me liberty or give me death" forefathers who determined that individuals have inalienable rights and that governments are instituted among the people to SECURE those rights), would have intended that our federal or state governments have absolute power to deprive people of their rights (lives, liberty, and property) for any arbitrary, unreasonable, unnecessary reason the government wanted so long as the government provided some sort of procedure for doing so?

Can you imagine Samuel Adams or anyone else involved with "securing the blessings of liberty" for themselves or their progeny through a bloody revolution declaring that government could do ANYTHING it wanted, for WHATEVER REASON it wanted, so long as some sort of procedural formality was honored? Since when was America a land that cared more about the formalities of the law than the substance of the law?

"The Legislative has no right to absolute, arbitrary power over the lives and fortunes of the people. The Legislative cannot justly assume to itself a power to rule by extempore arbitrary decrees. . . ." Samuel Adams, The Rights of the Colonists (1772).

We care about LIBERTY and JUSTICE for all. We care about the SUBSTANCE of our laws and "due process of law" does NOT grant any legislature absolute, arbitrary power over our lives simply because the legislature dresses the exercise of that power with some procedural formality.

The PROCESS of law includes everything from the beginning to the end: the enacting of a law, the legislative purpose for enacting the law, the enforcement of the law, the executive methods of enforcing the law, the application of the law to the interests affected, and the judicial methods of applying the law to cases and controversies and doling out justice. DUE PROCESS of law requires substantive and procedural FAIRNESS at every stage.

Our forefathers took special pains to ensure that our governmental system of justice had checks and balances to protect the people from tyranny and oppression--arbitrary deprivations of life, liberty, and property. Due process of law demands everything that is due to us as American citizens including both procedural fairness and substantive fairness in our legislative enactments of law and executive enforcements of law. Due process of law demands that our Courts serve as an independent branch of government to protect the people from arbitrary and unreasonable usurpations of our rights--both procedurally and substantively.

If we follow Scalia's rule of interpretation of including ALL that the phrase "due process of law" fairly means, then due process of law embodies fairness and reasonableness as the law of the land--not just PROCEDURAL fairness (how something is done), but also SUBSTANTIVE fairness (why something is done).


BUT, Scalia hypocritically violates his own rule of interpretation and fails to reasonably interpret the due process clause to include all that it fairly means. He strictly and narrowly interprets "due process of law" to exclude fairness and reasonableness as to substance (WHY something is being done) and interprets it to mean only fairness as to procedure (HOW something is being done). See Scalia's speech:






According to Scalia, the hypocrite and his idolators, "due process of law" is interpreted to exclude substantive fairness and means the government can do anything it arbitarily wants to do simply by enacting a statute. The state government can unreasonably deprive you of your life, liberty, or property so long as the government provides the procedure that is due.

WHY does Scalia violate his own rule of interpretation? Why does Scalia refuse to give the due process clause of the Fourteenth Amendment a reasonable interpretation to include ALL that it fairly means? Why does Scalia insist that due process of law merely embraces procedural fairness and excludes substantive fairness?

Scalia is against substantive fairness when it interferes with his totalitarian, moral majority agenda. He believes the moral majority ought to be able to impose their moral judgments upon others and enact any aribitray law they want to pass that infringes upon other people's liberty interests. After all, we live in a DEMOCRACY where the majority rules, right?

NOT TRUE. Our government is not a pure democracy. Moral disapproval alone is never a legitimate basis for enacting a law (using the power of the government) that infringes upon individual liberty interests. The Supreme Court has ruled that the majority may NOT use the power of the State to impose their moral views on the whole society through operation of the criminal law. See, e.g., Lawrence v. Texas.

The government does not have unlimited power to do anything it wants to do so long as it provides procedure. If it could, we wouldn't live in America, the land of the free--we would live in a totalitarian regime. Due process of law requires substantive fairness as well as procedural fairness. When a state law infringes upon protected interests (life, liberty, and property), the law must be necessary and narrowly tailored to serve a compelling state interest. It is not within the valid police power of the state to enact unnecessary, broadly-sweeping laws that arbitrarily infringe upon individual rights.


Scalia adamently denies the existence of substantive fairness in the Fourteenth Amendment as a component of "due process of law" in cases such as Lawrence v. Texas where he works his flamboyant hypocrisy to claim the state may deprive people of their fundamental liberty interests through the operation of state laws. He dissents to the majority opinion that strikes down a state law that infringes liberty.

On the other hand, Scalia embraces substantive fairness as a component of "due process of law" in cases such as Kelo v. City of New London where he works his flamboyant hypocrisy to claim the state may NOT deprive people of their property interests through the operation of state laws. He dissents to the majority opinion that upholds a state law that allows the state to take private property for public use.

Why isn't he consistent? If he claims "due process of law" is merely a procedural protection, why doesn't he apply his view consistently to proclaim that the state can deprive people of their property so long as the state enacts a law giving the state the power to do so and that "due procedure" is provided? If Scalia applied his method of interpreting "due process of law" consistently, then all he should care about is the PROCEDURE provided, not the substance of the legislative enactment itself.

Scalia's inconsistency demonstrates that Scalia is not interested in conducting himself as neutral judge and truly interpreting the text of the constitution reasonably, including ALL that it fairly means; rather, Scalia is MOST interested in serving his personal beliefs with respect to morality and property. Scalia's advocacy of "textualism" is the means that he uses to disguise and defend his result-oriented decisions.

The TEXT of the due process clause must be interpreted reasonably to include all that it fairly means--and "due process of law" reasonably and fairly means BOTH procedural fairness and substantive fairness. Due process of law concerns itself with HOW the government deprives people of their life, liberty, and property interests procedurally and WHY the government deprives people of their life, liberty, and property interests substantively. Due process of law does not tolerate arbitrary, unreasonable, and unnecessary infringements or deprivations of protected interests.

For those who believe that your state government can do anything it wants to do--even arbitrarily deprive individuals of life, liberty, and property interests--so long as the state legislature passes a law and provides the PROCEDURE that is due (and, in some cases, no procedure is deemed "due" at all except the enactment of the statute itself)--stand in line so our liberty-loving forefathers who abhorred arbitrary infringements upon their rights may have you appropriately tarred and feathered.