The late Justice Antonin Scalia was something of a hero to thoughtful Christian conservatives, and no doubt to others who thought that the US Constitution should be read as it was written, not as a contemporary committee of ex-lawyers wished it had been written.
Over the last few days since Scalia’s death I’ve been reading various obituaries and appreciations, and taking the opportunity to read various articles and opinions he had written, mostly from before his time on the Supreme Court. In doing so, I stumbled on all sorts of things – including commentary on a 19th century case in which the US Supreme Court was called upon to determine the validity of a curious law which (in the great era of trans-Atlantic migration) forbade the offer of employment in the United States to someone still resident abroad. Taking what Scalia considered was creative license with the Constitution, the Court struck down that law, allowing a New York church to recruit a vicar from the United Kingdom.
In clicking on various links I stumbled on this 1982 article in Regulation magazine, a journal that Scalia then edited. The article ran under the heading “The Freedom of Information Act Has No Clothes”. Much of his critical commentary is specific to the details of the American Freedom of Information Act, and particularly a bunch of extension enacted in 1974 when the presidency was at its weakest, just after the resignation of Richard Nixon.
Having been pushing the cause of easy access to official information – the principle enshrined in our Official Information Act – and lamenting the Reserve Bank move to charge for access to information, I was slightly disconcerted to find Scalia all in favour of charging for Freedom of Information Act requests. The 1974 amendments had significantly liberalized the charging provisions
The question, of course, is whether this public expense is worth it, bearing in mind that the FOIA requester is not required to have any particular “need to know.” The inquiry that creates this expense-perhaps for hundreds of thousands of documents-may be motivated by no more than idle curiosity. The “free lunch” aspect of the FOIA is significant not only because it takes money from the Treasury that could be better spent elsewhere, but also because it brings into the system requests that are not really important enough to be there, crowding the genuinely desirable ones to the end of the line. In the absence of any “need to know” requirement, price is the only device available for rationing these governmental service
He raises a number of other concerns with the priority the statute gives to freedom of information cases (including the requirement to respond with a specified time – 10 working days in the US at the time), noting that
The foregoing defects (and others could be added) might not be defects in the best of all possible worlds. They are foolish extravagances only because we do not have an unlimited amount of federal money to spend, an unlimited number of agency employees to assign, an unlimited number of judges to hear and decide cases. We must, alas, set some priorities-and unless the world is mad the usual Freedom of Information Act request should not be high on the list.
Of the FOIA he writes
It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored
And he concludes
The defects of the Freedom of Information Act cannot be cured as long as we are dominated by the obsession that gave them birth that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press. On that assumption, the FOIA’s excesses are not defects at all, but merely the necessary price for our freedoms. It is a romantic notion, but the facts simply do not bear it out. The major exposes of recent times, from CIA mail openings to Watergate to the FBI COINTELPRO operations, owe virtually nothing to the FOIA but are primarily the product of the institutionalized checks and balances within our system of representative democracy. This is not to say that public access to government information has no useful role-only that it is not the ultimate guarantee of responsible government, justifying the sweeping aside of all other public and private interests at the mere invocation of the magical words “freedom of information.”
I wasn’t ultimately persuaded. But it is always worth reflecting on arguments one disagrees with, perhaps especially when they are made by someone whose arguments one usually finds persuasive. Perhaps it is partly a matter of the passage of time: society seems to put a greater weight on open government now than was perhaps the case 35 years ago. Perhaps it is partly that, in the New Zealand context at least, there is little evidence of an overweening burden being placed on the public purse by Official Information Act requests. And perhaps too our “institutionalized checks and balances” are weaker than those in the United States – no powerful, and well-resourced, congressional committees, for example. The economic argument, which Scalia alludes to, that products that are unpriced will attract a very high level of demand, rings less true when, say, an organization as large and powerful as the Reserve Bank attracts perhaps 70 requests, of all types and across all issues, in a busy year.
Another Scalia piece I enjoyed, from a few years later by when he was a judge on the US Court of Appeals, was headed On the Merits of the Frying Pan, presented as part of a Cato Institute conference on Economic Liberties and the Judiciary.
Scalia discusses the question of whether substantive economic freedoms (as distinct from protection of procedural due process) should be built into the Constitution. He warns both (a) be careful what you wish for, and (b) more generally, reminds his readers and listeners that constitutions should really reflect matters on which there is already a deep social consensus. There wasn’t one – and probably isn’t – for economic freedom, in the US or here.
First, be careful what you wish for
Many believe- and among those many are some of the same people who urge an expansion of economic due process rights-that our system already suffers from relatively recent constitutionalizing, and thus judicializing, of social judgments that ought better be left to the democratic process. The courts, they feel, have come to be regarded as an alternate legislature, whose charge differs from that of the ordinary legislature in the respect that while the latter may enact into law good ideas, the former may enact into law only unquestionably good ideas, which, since they are so unquestionably good, must be part of the Constitution. I would not adopt such an extravagant description of the problem. But I do believe that every era raises its own peculiar threat to constitutional democracy, and that the attitude of mind thus caricatured represents the distinctive threat of our times. And I therefore believe that whatever reinforces rather than challenges that attitude is to that extent undesirable. It seems to me that the reversal of a half-century of judicial restraint in the economic realm comes within that category. In the long run, and perhaps even in the short run, the reinforcement of mistaken and unconstitutional perceptions of the role of the courts in our system far outweighs whatever evils may have accrued from undue judicial abstention in the economic field.
And then on constitutions
The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects that if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect.
I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards.
Unless I have been on the bench so long that I no longer have any feel for popular sentiment, I do not detect the sort of national commitment to most of the economic liberties generally discussed that would enable even an activist court to constitutionalize them. That lack of sentiment may be regrettable, but to seek to develop it by enshrining the unaccepted principles in the Constitution is to place the cart before the horse.
If you are interested in economic liberties, then, the first step is to recall the society to that belief in their importance which (I have no doubt) the founders of the republic shared. That may be no simple task, because the roots of the problem extend as deeply into modern theology as into modern social thought. I remember a conversation with Irving Kristol some years ago, in which he expressed gratitude that his half of the Judeo-Christian heritage had never thought it a sin to be rich. In fact my half never thought it so either. Voluntary poverty, like voluntary celibacy, was a counsel of perfection–but it was not thought that either wealth or marriage was inherently evil, or a condition that the just society should seek to stamp out. But that subtle distinction has assuredly been forgotten, and we live in an age in which many Christians are predisposed to believe that John D. Rockef eller, for all his piety (he founded the University of Chicago as a Baptist institution), is likely to be damned and Che Guevara, for all his nonbelief, is likely to be among the elect. This suggests that the task of creating what I might call a constitutional ethos of economic liberty is no easy one. But it is the first task.
As even those with an alterative judicial approach have noted this week, Scalia brought a combination of energy and intellect to his work that constantly improved even the judicial reasoning advanced for decisions with which, as a matter of legal interpretation, he profoundly disagreed.