Tuesday, September 21, 2004 - The Progress & Freedom Foundation Blog

Scalia: On Democracy and the Courts (and Agencies)

Maybe it's too bad that Justice Scalia doesn't allow audio or video broadcasts of some of his public appearances. Last night I heard him give a wonderful talk (and engage in a spirited 30 minute Q&A) at the Ethics and Public Policy Center. Full of wit and wisdom, Justice Scalia gave a vigorous defense of his understanding of what "originalism" as a method of constitutional interpretation demands.

For purposes of this page, it was very instructive that Justice Scalia began his lecture by attacking the progressive vision that animated the creation of independent regulatory agencies like the FCC. He rebuffed the notion that we should expect disputed policy issues before these agencies somehow to be susceptible to resolution by "experts" divorced from political considerations. Scalia declared that for many, if not most, controversial agency issues (he gave the example of the FCC's media ownership policies) there is no one "right" answer waiting to be discovered by the "experts". The issues necessarily involve policy predilections informed by one's philosophical dispositions (in the case of media ownership, say, one's preference for higher quality programming attributable to economies of scale versus fear that diversity is threatened by too much concentration). He then went on to make his principal argument: That too many of today's judges consider themeselves to be "experts" qualified to decide issues that should be--and in his view, are--left under our Constitution to be resolved by the democratic process, rather than the judiciary.

Of course, drawing the line between proper law interpretation and improper judicial lawmaking is often not easy. And I don't necessarily agree with every jot and tittle of Justice Scalia's defense of his own originalist interpretive method. But I do agree with what he had to say last night about why it is not only naive--but wrong--to think that important questions of communications policy should be resolved by unelected "experts" too far removed from political accountability.

I bet the good Justice would like my August 23 National Law Journal piece ("Consolidate FCC Power") suggesting that we seriously consider moving a much slimmed-down version of the FCC to the Executive Branch. Maybe he reads the PFF blog and saw the link.

posted by Randolph May @ 11:51 AM | General