Jonathan Goodman's Political Commentary

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On Justice Antonin Scalia, June 22, 2004.

Even liberals who disagree with most of what Supreme Court Justice Antonin Scalia writes sometimes say he has a "brilliant legal mind". I've often been skeptical. As a mathematician, I would doubt the competence of another mathematician if most of what he or she said was wrong. Here is a vignette consistent with supposition of incompetence.

Mathematicians often have trouble with legal arguments. We're more comfortable with absolutes ("Congress shall make no law...") than with the necessary process of comparing conflicting interests ("Your right to swing your hand has to be curtailed near my nose".). Moreover, around the simple text of the US Constitution has grown over two centuries a huge body of interpretation and elaboration that takes years to master. This is something like Torah study, where single sentences ("Noah was a good man in his time") have spawned endless discussion and speculation (Was he a good man in the prime of his life? Was he merely a better man than others in his generation? Was he as good as it was possible to be given that he was unaware of most of G-d's commandments?) While Torah scholars disagree on many points, all conservative ones agree on the text (liberals think it might have been miscopied generations ago), and know it cold.

So it was, several years ago, that Associate Justice Antonin Scalia addressed a liberal college campus audience, regaling then with stories of the Court's misunderstandings of the Constitution. That evening, the Justice was particularly concerned with the Court's finding of a Right to Privacy, which, the Court has mistakenly held, makes laws against birth control and sodomy unconstitutional. "Read the text.", he urded then. "Nowhere does it mention privacy".

My formal training in the Constitution began and ended over twenty years ago in tenth grade semester with Mr. Lerch. Among other things, we learned that some of the founding fathers (please don't ask which ones) opposed the Bill of Rights because it would be impractical to list or even think of all rights that should be preserved. They worried that listing a subset of those rights would automatically deprive Americans of all the unlisted ones. The compromise, I vaguely recalled, was a clause somewhere mentioning unlisted rights.

A Supreme Court Justice certainly has taken the course on the Bill of Rights and advanced graduate seminar seminars on Amendment x (x being an integer from 1 to 10). I was hoping the question and answer session would turn to unlisted rights, and maybe why the right to privacy exists and is unlisted while the right to evade taxes is unlisted and doesn't exist. It would be an exercise in reading the unwritten text.

My friend, Dan, at the event was another mathematician with no more legal training than I but fewer years from high school. During the question and answer period, he asked: "How do you interpret the ninth Amendment?" Though I must have known the ninth Amendment at one time, on that day it was as remote as the Capital of Bhutan. Still it should have been a "softball" for a man whose job it is to interpret the Constitution. It was like asking a Rabbi to for his views on the ninth Commandment (no perjury).

"Which one is that?" asked the Justice. He started reaching in his pocket for his copy of the constitution.

Dan answered: "The enumeriation in the Constitution of certain rights ..." Laughter and applause drowned out the rest of Dan's answer. ("Which was just as well, since I'm not sure I knew it to the end.")

By the time the audience settled down, the legal scholar on stage had found the right page in his little book and read aloud: "The enumeriation in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." He thought for a moment. "That only applies to the states."

Dan tried to call out: "What about the fourteenth Amendment?" but the session moved on to other topics.

When the congregation I belong to replaced its Rabbi, nobody asked any of the candidates to list the ten Commandments or the Books of the Torah. Senate confirmation hearings never ask candidates for the Supreme Court to recite the Bill of Rights. Given Justice Scalia's performance, maybe the Senate should institute a preliminary written exam on the Constitution before the oral questioning. That might have weeded out some of the rifraf.



Discussion

Here are exerepts from a long email from another mathematician, Yevgeny. He quotes Justice Blackmun in his 1973 opinion on the case of Roe vs. Wade (which held that laws against abortion violate a woman's right to privacy). If you followed the discussions when Robert Bork was "Borked" (had his published legal writings used against him during his confirmation hearings for the Supreme Court), you know that the Griswald held that a Connecticut law against birth control violated the right to privacy.

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923)." (quoting Hon. Blackmun)

This amply confirms my unease with legal reasoning. Reading the Constitution does not make one an expert on US law any more than reading the Torah makes one an expert in Jewish thought. Yevgeny also explains the term "penumbra":

In Griswold, the justices admitted that there is no guaranteed right to privacy in the Constitution, rather in their words, a "penumbra" of the Bill of Rights. For example, the Fourth Amendment guarantees the right to be free from unreasonable search and seizure. Hon. Douglas says in writing for the majority in Griswold:

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

He goes on to say:
"Various guarantees create zones of privacy"

Although former Justice Douglas is a hero to some on the left, many consider his opinions to be sloppily reasoned. I have no independent opinion. After this lesson, Yevgeny gets to his actual point:

If one actually reads Hon. Scalia's opinions (see for e.g.: his dissent in Lawrence v. Texas in 2003), rather than a dingbat remark made at some speaking engagement, as silly as it was, one would see that what they talk about are precisely the thing I discuss. So, I think that it would be fairer to base one's opinion of Justice Scalia on his decisions rather than something silly he said at a podium. Have you never seen a respected mathematician make a silly arithmetical error? I have. Many times in classes with some of the great minds of modern mathematics. Does this make them not great mathematicians? Of course not.

Any mathematician will agree that we all make lots of mistakes at the blackboard. Still, I would not be impressed at a PhD examination if a student specializing in mathematical logic were asked to state the axiom of choice and responded: "Which one is that?"

It was interesting to read the opinion Yevgeny refered to. Much of it seems plausable to this mathematician with no training in law, particularly the apparent contradictions between rulings in various cases. Liberals and conservatives both complain about this, though on different days.

In my day job, I often am confronted with long and hard to understand arguments for something I find hard to believe. How do you show an argument is wrong without understanding it? Find a counterexample. If I understand Justice Scalia, his main argument is that homosexuality is not protected by the constitution, so a state may outlaw homosexual behavior. Does the Constitution protect the right to act like an Italian American? Can spagetti be banned?


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Last revised June 8, 2004.