Confronting the Constitution

The erudite* Antonin Scalia can't resist the urge to show off:

Scalia even seemed to accuse his colleagues - or the reader - of having a limited vocabulary. When he referred to the majority's "dystopian" view of Detroit, he added a footnote:

"The opposite of utopian. The word was coined by John Stuart Mill as a caustic description of British policy," Scalia added.

The case involved the Constitution's demand that a witness be available for cross-examination; it was Scalia who led the fight to reinvigorate the Sixth Amendment's requirement for witness confrontation. In this case the court created an exception for the use of a victim's "dying words" if they were made "during an emergency created by a criminal event" as opposed to statements made during the investigation of a crime. In a scathing dissent, Scalia said the complicated rules set down by the majority "leaves judges free to reach the 'fairest' result under the totality of the circumstances," regardless of the Constitution's requirements. Under such a "malleable approach," he said, "the guarantee of confrontation is no guarantee at all."

When Scalia gets into the "Constitution means exactly what it says" mode, it usually drives progressive nuts, and they claim he just uses originalism as an excuse to further his conservative agenda. But this is a case in which civil libertarians should be pretty pleased with him.

*Erudite means "characterized by great knowledge; learned or scholarly" and comes from the Latin erudire, "instruct."