IPcentral Weblog
  The DACA Blog

Tuesday, September 21, 2004

Scalia: On Democracy and the Courts (and Agencies)
(previous | next)

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

Share |

Link to this Entry | Printer-Friendly

Post a Comment:

Blog Main
RSS Feed  
Recent Posts
  EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
New OECD Study Finds That Improved IPR Protections Benefit Developing Countries
Hubris, Cowardice, File-sharing, and TechDirt
iPhones, DRM, and Doom-Mongers
"Rogue Archivist" Carl Malamud On How to Fix Gov2.0
Coping with Information Overload: Thoughts on Hamlet's BlackBerry by William Powers
How Many Times Has Michael "Dr. Doom" Copps Forecast an Internet Apocalypse?
Google / Verizon Proposal May Be Important Compromise, But Regulatory Trajectory Concerns Many
Two Schools of Internet Pessimism
GAO: Wireless Prices Plummeting; Public Knowledge: We Must Regulate!
Archives by Month
  September 2010
August 2010
July 2010
June 2010
  - (see all)
Archives by Topic
  - A La Carte
- Add category
- Advertising & Marketing
- Antitrust & Competition Policy
- Appleplectics
- Books & Book Reviews
- Broadband
- Cable
- Campaign Finance Law
- Capitalism
- Capitol Hill
- China
- Commons
- Communications
- Copyright
- Cutting the Video Cord
- Cyber-Security
- Digital Americas
- Digital Europe
- Digital Europe 2006
- Digital TV
- E-commerce
- e-Government & Transparency
- Economics
- Education
- Electricity
- Energy
- Events
- Exaflood
- Free Speech
- Gambling
- General
- Generic Rant
- Global Innovation
- Googlephobia
- Googlephobia
- Human Capital
- Innovation
- Intermediary Deputization & Section 230
- Internet
- Internet Governance
- Internet TV
- Interoperability
- IP
- Local Franchising
- Mass Media
- Media Regulation
- Monetary Policy
- Municipal Ownership
- Net Neutrality
- Neutrality
- Non-PFF Podcasts
- Ongoing Series
- Online Safety & Parental Controls
- Open Source
- PFF Podcasts
- Philosophy / Cyber-Libertarianism
- Privacy
- Privacy Solutions
- Regulation
- Search
- Security
- Software
- Space
- Spectrum
- Sports
- State Policy
- Supreme Court
- Taxes
- The FCC
- The FTC
- The News Frontier
- Think Tanks
- Trade
- Trademark
- Universal Service
- Video Games & Virtual Worlds
- VoIP
- What We're Reading
- Wireless
- Wireline
Archives by Author
PFF Blogosphere Archives
We welcome comments by email - look for a link to the author's email address in the byline of each post. Please let us know if we may publish your remarks.

The Progress & Freedom Foundation