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Professor Scalia Comes to Capitol Hill: Here Is His Constitutional Lesson Plan

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U.S. Supreme Court Justice Antonin Scalia, described just last week by a Washington law professor as "the first real celebrity justice" for his controversial public pronouncements, will come to Capitol Hill on Monday to lecture about constitutional law to some earnest members of the House of Representatives. He was invited to do so by Rep. Michelle Bachmann, a Minnesota Republican and tea party activist in Congress, as part of her effort to educate lawmakers about the nation's founding legal documents.

Although Justice Scalia has been criticized in some quarters for accepting the invitation, it is not unreasonable of him to consider the opportunity to speak face-to-face with his interbranch partners as a rare and welcome one. And although many observers see the effort as a partisan ploy between and among conservative ideologues, there are plenty of nonpartisan things Professor Scalia can lecture about. For example:
1. Write Less Ambiguous Laws. Scalia should remind Capitol Hill that a great deal of the reason the Supreme Court is often called upon to resolve disputes, constitutional or not, is because lawmakers keep enacting legislation the language of which is ambiguous, incomplete, and often contradictory. "We want you to know," Professor Scalia should say to the impressionable lawmakers, "that we know when you are legislating clearly and we know when you are just passing the buck along to us, and usually it's the latter."

2. The Constitution Itself. Professor Scalia should confirm to his students that the Constitution itself is just such an "ambiguous, incomplete and often contradictory" legal document and that, 99 percent of the time, federal judges interpret it in a valid and reasonable manner. "The steel of the Constitution was forged from the same political fire that today generates compromise and conflict in lawmaking," Professor Scalia should teach. "We as judges are simply doing the best we can with an imperfect document."
3. Fill the Empty Article III Benches. OK, this is one for the Senate, and not the House, but it still applies. The surest way to express the most reverence to the Constitution is to confirm the number of judges necessary to fill the scores of empty benches that languish in federal courts across the country. Professor Scalia should make this point: "If the Constitution is to apply dutifully to everyone's life, we can no longer coutenance delays in bringing justice to litigants by failing to adequately staff our courts."
4. Forget About Constitutional Authority Statements. Professor Scalia should encourage all members of Congress to increase their knowledge and understanding of the Constitution. But he should also take the opportunity to remind his students that no matter what is actually in the constitutional "statements" they issue in conjunction with pending legislation (a new GOP House rule), it will be the Supreme Court, and not the Congress, which will have the final say on whether a federal law is or is not valid. "If you are going to try an end-run around the court's foundational decision, Marbury v. Madison," Professor Scalia should say Monday, "then don't expect support even from me."

5. Judicial Actvism Is a Myth. Professor Scalia should instruct his pupils that the charge of "judicial activism," whether from the right or from the left, is silly and worthy of far less attention than it receives from politicians, including some of the students sitting in front of him. "Every time a judge decides a constitutional case," Professor Scalia should tell Bachmann and Company, "it's an act, whether it is in your favor or not. Judicial activism means so much that it really means nothing at all."
6. Judicial Ethics and the Constitution. Professor Scalia shouldn't (and ethically can't) tell his students what he thinks of the constitutionality of the Patent Protection and Affordable Care Act of 2010 -- besides, they probably already know by now from this dissent earlier this month. But he can take the opportunity to impress upon the class that it's not the place of politicians to lobby sitting judges about the results of a particular case. "Don't tread on us," Professor Scalia should say to lawmakers, "we are a co-equal branch of government."

7. Civility in Government. Professor Scalia, a dear friend of his ideological counterpart Justice Ruth Bader Ginsburg, should impress upon his audience of professional political scientists the usefulness of civility and respect in government work. There is no doubt that the court's five conservative justices don't often see eye-to-eye with its four liberal justices. And there are likely tensions from time to time in the court and its famous conference room, where cases are discussed. "But we get along," Professor Scalia should say, "and we go to lunch, and we talk, and we don't need to issue press releases when we decide to sit next to one another."
Filed Under: Tea Party, Supreme Court

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19 Comments

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salann37

Att; Mr. Cohen; Justice Scalia should be commended for agreeing to speak before the House of Representatives, the sole meaning of the Constitution of the U.S.. He is a learned scholar in regard to all the documents written by the founders for our country. It was designed to protect the people from an over reaching government, who might attempt to relinquish rights from the people, and change the Constitution to conform to a government void of the freedoms it was intended to protect people from, which I believe this to be Tyranny. No one should be allowed to govern this country with intentions toward Socialism/Communism. We wish to be free! We will fight for the Constitution/Declaration of Independence, resisting any attempt to change what our founding fathers fought and died for. It appears that our representatives need to be reminded of the accurate meaning of our greatest documents. Justice Scalia is a proud American and true Patriot. God Bless Him!

February 01 2011 at 2:07 AM Report abuse rate up rate down Reply
ettu

"that we know when you are legislating clearly and we know when you are just passing the buck along to us, and usually it's the latter."...................
It has long been my opinion that our US Legislators deliberately write many laws in a vague and incomplete manner, because this allows those who support the many lawyers that occupy those legislative chairs a way around a law that does not necessarily benefit their special interests. By the time the vagueries are interpreted, the money boys have made their profits.

January 24 2011 at 5:25 PM Report abuse +8 rate up rate down Reply
ptaray

This is just another stunt to give the impression that the tea party folks are in some way more "constitutional" then the rest of the folks who are in office.
Howerevr they might not like what he says, since if he shows bias in his delivery of supposed non-biased law intepretations his own credibility will be even more suspect then it is now by many. This will lead to more cry0baby folks complaining about past decisions. But the GOP and the tea party want questions and more doubts, this is the only way their "cause" or their destruction of the way Freedom and equality are seen can move forwards. Freedom and actual American sp[irit, is NOT the intent of the tea party folks, nor those who support their extreme views of this nations past, and future.
just a thought based on todays article.

January 24 2011 at 4:51 PM Report abuse -10 rate up rate down Reply
Michael

The Supreme Court certainly was not treated as a coequal branch of government last year at the State of the Union by President and so-called constitutional scholar Obama. Obama's vicious ambush attack on the justices was and remains a disgrace visited upon a defenseless group attending not out of constitutional duty, but out of respect for the process. Civil discourse would be welcome, starting right at the top.

January 24 2011 at 2:52 PM Report abuse +14 rate up rate down Reply
3 replies to Michael's comment
FFT Inc.

I wonder if Professor Scalia could comment on where in the Constitution it says the Supremes should decide a presidential election.

January 24 2011 at 11:46 AM Report abuse -4 rate up rate down Reply
2 replies to FFT Inc.'s comment
Sabeckum

AMEN!

January 24 2011 at 2:37 PM Report abuse -5 rate up rate down Reply
Michael

When sued to do so by a losing candidate trying to get from the court what he had not won at the ballot box. Even Richard Nixon had the decency to spare us lawsuits in 1960.

January 24 2011 at 2:53 PM Report abuse +15 rate up rate down Reply
rothomaha

There are untold numbers of constitutional scholars in the country, and I find it impolitic and just plain wrong for a sitting member of the Supreme Court to be doing what any of these people could do as well or better. Besides, Scalia is among the most reactionary of the group - do we need to allow the Supreme Court(supposed to be an impartial arbiter on constitutional issues) to advise the already divided and belligerent Congress on how to become even more so? This should NOT be permitted to happen!

January 24 2011 at 8:50 AM Report abuse -2 rate up rate down Reply
Dallas

In religion and spirituality, a pilgrimage is a very long journey or search of great moral significance. Sometimes, it is a journey to a shrine of importance to a person's beliefs and faith. Members of many major religions participate in pilgrimages. A person who makes such a journey is called a pilgrim

January 24 2011 at 5:50 AM Report abuse -2 rate up rate down Reply
betspotter

I think Obama needs to sit in on this lesson....quick, and bring his recorder for reference. Maybe if the Congressmen would slow down long enough to write the laws rather than rubberstamping the wish lists of special interests, the laws would be decipherable. It seems obvious that lawmakers should really know what is in the bills before voting for it. Duh. I'm all for separation of powers, again, Obama needs a review session on this.

January 23 2011 at 11:15 PM Report abuse +12 rate up rate down Reply
1 reply to betspotter's comment
Sabeckum

Then again, perhaps it might be better if you would familiarize yourself as to just what the presidential powers are. Did you, by any chance, complain when Bush instituted 150+ independent presidential rulings. These were just as legal as congressional laws.

January 24 2011 at 2:41 PM Report abuse -6 rate up rate down Reply
dixfiles

This is from the point of view a man who hunts with Dick Cheney, and Selected W Bush over the winner Al Gore?
What is he saying? "If you make this law, we will declare it unconstitutional"?
Judges should not have the right to teach the law makers what they will or will not declare anything. They are supposed to be 3 separate branches. Congress, judges and, President.
The President can't make one law! The Court should not be allowed to tell the Congress what laws to pass. They only get to decide AFTER if they are constitutional!
Thomas and Scalia are good subjects to consider for impeachment. Yes, it can be done... Read the Constitution!

January 23 2011 at 11:14 PM Report abuse -8 rate up rate down Reply
wjs27skeet

Now lets see, according to Andrew Cohen...the Constitution itself is just such an "ambiguous, incomplete and often contradictory" legal document! Well I'm not a million dollar lawyer but it appears to me that the Constitution, especially the "Bill of Rights" is plainly written. Its only when liberal activist judges want to make laws opposed to the Constitution and our freedoms is when controversity enters the picture. Judicial Actvism Is a Myth... see previous sentence. "usefulness of civility and respect in government work" Its OK for Judges but Lawmakers are suppose to do the will of the people, and fight by any means to accomplish their contitutents wishes. The call for CIVILITY is just an attempt to silence the opposition to the Administration's radical deviation from the norm. just as your incorporation of CIVILOGUE is.

January 23 2011 at 10:41 PM Report abuse +8 rate up rate down Reply
3 replies to wjs27skeet's comment

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