The present moment is auspicious for an affirmation of judicial restraint in a democratic society increasingly enveloped by a juridical ethic that the federal constitution is an"evolutionary" -- perhaps revolutionary -- document, the meaning of whose provisions are determined principally by our law-trained elite -- lawyers, law professors and judges. Antonin Scalia, Associate Justice of the Supreme Court and America's foremost conservative A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 159 pages, $19.95) A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 159 pages, $19.95) A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 159 pages, $19.95) A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 159 pages, $19.95) jurist, has done just that in A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 159 pages, $19.95), a thin volume that contains his lively and lucid defense of textualism and originalism in constitutional interpretation, along with the commentary of four academics -- Laurence Tribe, Ronald Dworkin, Mary Ann Glendon, and Gordon Wood. Swords ring clearest when the justice responds to his critics in a concluding essay, in parts sharp, witty and sound. No less than Judge Robert Bork's 1990 bestseller The Tempting of America, Justice Scalia's essay and response to his critics is easily accessible to the general reader.

Judicial activism is a term of abuse -- in some quarters, approbation -- almost as often used as misconceived. A favorite trope of the juridical left is that conservative jurists and academics are in fact the true radicals, intent on effacing at least the last forty years of development in constitutional jurisprudence. This, of course, is a Merriam Webster kind of conservatism, one that conserves the status quo, be it decadent or virtuous. The interpretive philosophies of originalism and textualism espoused by Justice Scalia and others, however, are calibrated to conserve the constitutional order of the Founders by confining judicial decisions to the text of the Constitution, as its provisions were generally understood by those whose consent made it law. Judicial activism is measured by the variance of court decisions from the limited range of meaning which the Constitution's text, properly understood, can bear, and not by their variance from certain decisions of the Warren Court or other extra-constitutional principles now in vogue.

Justice Scalia believes that the judicial impulse to activism originates in the common law education American lawyers receive. At one point judge-made or common law --"common" because it is the law governing quotidian activity, from contracts and property transaction to tort claims -- merely reflected social and commercial usage, but sometime after the thirteenth century essentially became the application of judicial reason to the controversies of the day. Judge-made law grew in the general absence of statutory or enacted law. In law school, students learn to comb through centuries worth of Anglo-American court decisions, distilling from them the rules judges created to decide the cases before them. After these rules of decision are identified, professors and their students debate the policies underlying each decision and whether a more effective or more just rule can be imagined. As the justice points out, this can be exciting experience, as it all"consists of playing king -- devising, out of the brilliance of one's own mind, those laws that ought govern mankind." When law students become lawyers, and lawyers judges, they naturally carry with them the common law habit of judging and creating law according to their own private notions of justice.

This common law education lingers today despite the proliferation of enacted law, originating in the 1930s with the New Deal and continuing unabated through today. Judges deciding even commonplace cases today do not face the open canvass of the common law as did their predecessors centuries ago, but vast tracts of statutory and regulatory text. But the common law skills and habits learned in law school persist, and when confronted with often haphazardly drawn statutes, littered with ambiguities, the temptation to impose one's personal prejudices is often too great for a willful judge to resist. The greatest temptation of all -- with faint promises of jurisprudential immortality -- comes when a judge has to interpret the broad phrases of the United States Constitution.

The notion that the Constitution is a"living document" is common currency in legal and non-legal circles alike. The antique rights of Englishmen, the argument goes, cannot be chiseled into the constitutional granite of colonial America, fixed and indifferent to the pleas of modern society. Instead, the Constitution must be"launched upon a historic voyage of interpretation in which succeeding generations . . . [will] elaborate what the text means in ways all but certain not to remain static" (in Professor Tribe's formulation) ; and sometimes it's provisions must grow and develop to reflect"the evolving standards of decency that mark the progress of a maturingsociety" (in one of Justice Brennan's formulatons). The discovery or creation of new constitutional rights, and the adaptation of old ones, is possible"only through the processes of moral philosophy," as Professor Tribe admits. Of course, this ethereal voyage of interpretation is captained by our law-trained elite, taking as their polestars their private notions of social justice.

Herein lies the central problem of The Living Constitution: If a written constitution's guarantee's are mutable through judicial interpretation, then they mean nothing at all and offer no enduring protections. The"whole purpose [of a written constitution]," Justice Scalia reminds us,"is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that ^Ñevolving standards of decency' always ^Ñmark progress,' and that societies always ^Ñmature,' as opposed to rot." Advocates of The Living Constitution insist that its evolution will always result in greater, not diminished, personal freedom. Setting aside the question of why liberty should always trump authority in their primeval battle, the historical record refutes this assertion. Not only has the Court eviscerated constitutional property and contract rights -- and Scalia suggests, it may do the same to the Second Amendment's right to keep and bear arms -- it has moved on to truncate the Eighth Amendment's Confrontation Clause, holding that in some instances a criminal defendant no longer has the right to confront his accuser, despite the express command of the Constitution to the contrary. Unmoored from the Constitution's text as historically understood, the Court is free to decide, for instance, that modern America has too much political speech and rewrite the Free Speech Clause to provide for congressional regulation, much as the minority leaders of both houses of the Congress now propose.

When a written constitution's guarantees are but wet clay in the hands of willful federal judges, law depends on caprice and we inescapably become a nation of men, not laws. For, as Justice Scalia warns,"When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought mean . . .." This is equally true in constitutional adjudication as in statutory interpretation, except that constitutional decisions are vastly more difficult to reverse. The Constitution ceases to mean what it says, ceases to codify certain prescriptive rights slowly asserted and established againstthe claims of the crown and its successors, and comes to solely reflect the prejudices of contemporary federal judges, which are unlikely to be reflective of broader social consensus.

Russell Kirk has written,"Not by force of arms are civilizations held together, but by the threads of moral and intellectual belief. In the hands of the Fates are no thunderbolts: only threads and scissors." These threads are necessarily woven from below, through the slow formation of social consensus; when consensus is broad and deep enough that something is thought fundamental to liberty, it is then formally added to the Constitution through Article V. But when judges take it upon themselves to legislate and amend through judicial interpretation outside of Article V, as Professor Glendon points out in her elegant commentary,"democratic elements in our republican experiment atrophy. American men and women not only are deprived of having a say on how we order our lives together, but we lose the skills of self government." This doubtless fosters the cynicism and alienation from authority which is seen everywhere today.

Early in this century Justice Oliver Wendell Holmes famously accused his brethren of trying to inscribe Herbert Spencer's economic theories into the Constitution. Today's activists are more likely to be influenced by the writings of John Stuart Mill and John Rawls, and take as their program the prohibition of expressions of traditional morality in American law and the institution of wider protections of avant-garde social behavior, in addition to eliminating whatever restraints remain on congressional legislative power and systematically boring holes into the walls separating our tripartite form of government, thereby abetting the growth of the administrative state. The increasing shrillness of debates surrounding issues the federal judiciary has preempted -- abortion and homosexual rights, among many others -- suggests that judicial activists are dangerously wielding the Fates' scissors, rending an already threadbare social fabric in their push for great and faster "social justice." As Justice Scalia points out,"Judges are not [] naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite."

Generally, conservatives today fear that the Constitution will be transmuted into an instrument of oligarchic rule, but Justice Scalia fears the increasing politicization of our fundamental law will lead to rise of a fearful populism:"If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that." Here Scalia is at his weakest. The appointment and confirmation process, like the legislative process, is more easily manipulated by a few highly motivated activists wielding influence well beyond their numbers or reasonableness than by the unwashed masses. Popular control would require political interest and exertion that the very practice of judicial activism militates against. Professor Glendon wisely asks,"Which is more likely: that unruly majorities will have their way? Or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise? Whom should we fear more: an aroused populace, or the vanguard who knows better than the people what the people should want?"

Perhaps judicial restraint is the true Lost Cause of American history. The last five Republican presidents have had little effect on the decisions of the Supreme Court or the culture of the law; indeed, many of the greatest judicial radicals have Republican markings (Warren, Brennen, Blackmun). But Justice Scalia's masterful essay is not in vain. For, as T.S. Eliot has written,"We fight for lost causes because we know that our defeat and dismay may be the preface to our successors' victory, though that victory itself will be temporary; we fight rather to keep something alive than in the expectation that it will triumph." We are fortunate that in this decadent legal age, that one jurist still contends gamely against the rot.