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Justice Scalia seems to doubt that benefit of the doubt. If Congress includes various provisions to allow courts to quickly assess whether a law is constitutional, it does raise doubts about whether Congress actually thought it was constitutional.

LAMB: All right. Let me read this to you, ”The modern congress sails close to the wind all the time. Federal statutes today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review for standing on the part of the members of congress, and even for fallback disposition, should the primary disposition be held unconstitutional.”

SCALIA: Right.

LAMB: I want to go back to that original thing, statement, ”The modern congress sails close to the wind all the time.”

SCALIA: Yes. That followed upon our statement that, traditionally, Congress is – you assume the constitutionality of any statute that Congress enacts because it is assumed that Congress would not – indeed if there is even constitutional doubt, you give the Congress the benefit of the doubt.

In recent years however, it’s more questionable whether Congress really is even thinking about the constitutionality and that passage recites the fact that this evident from the content of their statutes. I mean, who would have ever thought, in the 19th century for example, that congress would pass a statute that says, ”In the event the stuff we’re just said is unconstitutional, we have this other provision instead,” which is what congress has done.

I mean, that makes you wonder, are they really sure this stuff is constitutional? Have they really thought about it? And I think that comment was also made in response to the charge of ”judicial activism” which is a word that doesn’t mean anything really.

It just means that the person who uses it doesn’t agree with the decision. I mean, what is judicial activism? It is certainly not doing actively what judges ought to do. Is that judicial activism? I think not. And if a statute ought to be held unconstitutional it’s not judicial activism to call it unconstitutional.

It is interesting that the Affordable Care Act, which most knew from its outset was on a collision course with the Supreme Court, did not contain any expedited provisions (like the McCain Feingold BCRA had).

David Bernstein blogged that an original version of HillaryCare included just such a provision. Alas, it seems the authors of the ACA did not take such concerns seriously.

During the committee markup of its version of the bill, Senator Hatch raised some thought-provoking constitutional questions. He offered an amendment, which I supported, to provide a process for the courts to promptly consider any constitutional challenge to the Finance Committee bill. He chose the same language that was put into the bipartisan Campaign Reform Act. Unfortunately, the amendment was deemed nongermane. I am seriously concerned that the Democrats’ health care reform bill violates the Constitution of these United States.

Justice Scalia thinks so.

SCALIA: Right. I mean, that is false. Some people say, you know, ”What are you Scalia, a historian? You’re going to figure out what this man in 1791, when the Bill of Rights was ratified – ” Yes. I can do that, just as I can decide patent cases.

What do I know about patents? I know nothing. But I listen to each side. They bring – that’s what the adversarial system is all about; each side has an interest in bringing forth the best evidence possible. So, just as I can decide a patent case by evaluating – in fact, it’s even easier for me to evaluate historical evidence than it is for patent evidence for Pete’s sake.

Judges do this all the time. It’s the council who have to be expert, or who have to know where to point the judge’s for expert advice. And I don’t see why judges cannot do history. They have to do history all the time.

This is an apt analogy I have made before:

I have no doubt that the methodology and approaches originalist scholars and judges use conflict with generally accepted historian practices. I’m also fairly certain that the approach Judges use to deal with Intellectual Property differs from the approaches of engineers and scientists (think of a Daubert hearing). The approach Judges use to deal with economics and antitrust law differs from the approaches economists take. The approach Judges use to deal with issues of faith differs from the approach members of the clergy and philosophers take, and…. (I can go on…).

Judges aren’t historians.  Judges aren’t engineers. Judges aren’t philosophers. Judges judge.

Judges are frequently forced to reach outside the area of law to understand complicated topics. Indeed, if one accepts conceptually the doctrine of originalism (and most judges would, at least to some small degree), then understanding what certain things meant 200 years ago–a historical inquiry–is a necessity (what to do with that history is a whole different ball of wax).

That being said, even within the best lights of judges, there is good history and better history. Judges should strive to do better history, within the adversarial system.

Justice Scalia does not think so. Elsewhere I have blogged about the Court’s tendencies to look outside the record from the lower court to find facts that impact the reasoning and decision. Justice Scalia does not seem so bound, as he defended his opinion in Arizona v. United States that relied extensively on the President’s then-recent decision not to enforce large swaths of the immigration law with respect to deportation.

SCALIA: There were innumerable cases in which we cite newspaper articles; innumerable articles. There’s no rule that you cannot cite any public materials in opinions and only cite the record. I mean, if it’s a factual matter that is up for decision, of course, you can only use the matter set forth in the record to determine the facts.

But that’s not the purpose for which I used it at all. And, we use public records all the time. The point I was making there had nothing to do with a factual determination. I don’t want to – people should read the opinion to see whether my use of that so-called non-record material was – was proper or not.

“If they weren’t in the record, I don’t want to hear about them. You appreciate that rule, that we don’t consider things that aren’t in the record.”

From a very interesting interview with the inestimable Brian Lamb, Scalia says he is not worried that professors may point out that his own opinions may conflict with the rules he wrote in his new book with Garner:

LAMB: You’re judicial author – there’s a co-author and you’re the judicial author, ”knows there are some, and fears there might be many opinions, that he has joined or written over the past 30 years that contradict what is written here – whether because of the demands of stare decisis or because wisdom has come late.”

Second part, ”Were still your judicial author,” that’s you, ”does not swear that the opinions that he joins or writes in the future will comply with what is written here, whether because of stare decisis, because wisdom continues to come late or because a judge must be open to persuasion by council.”

And then you finish this by saying, ”Yet, the prospect of gotcha’s for past and future inconsistencies holds no fear.”

SCALIA: Yes. I thought that was pretty clever. Didn’t you?

LAMB: Well, I thought that was – it was food for questions.

SCALIA: I worry about people pointing out, you know, leading up to say, ”Well, you say thus and so and in your opinion 22 years ago … ” I didn’t review all of my opinions to be very sure that every one of them comports with the truth set forth here and I didn’t want to have to do that.

And, for the future, any judge has to be open to persuasion, to acknowledge his past ignorance if necessary. So, I, you know, I won’t swear that I’ll follow this in the future but I probably will.

LAMB: Gotcha’s.

SCALIA: Gotcha’s.

LAMB: Who – who deliver to you gotcha’s in your life?

SCALIA: Apart from my wife?

LAMB: Yes.

SCALIA: I would expect gotcha’s to come principally from academia; many in academia. Probably very many – most of academia does not agree with the theory of interpretation set forth in this book.

LAMB: Why?

SCALIA: Why? Because they prefer theories that augment the – the power of the judge and hence the power of the law professor. The theory of interpretation set forth here is a very – a very humbling one. It does not leave a whole lot up to the policy discretion.

In fact, it leaves nothing up to his policy discretion. The name of the game is to give the fairest reading to what the people’s representatives have enacted. That’s what a judge is supposed to do.

Now, that is an uncongenial approach to someone who wants to do good, who wants to use his office as it can be used to do things that he thinks are good for the society. If one has that zeal, one will not like the approach set forth in this book.

Make students read the Federalist. All of it.

LAMB: We have a group of teachers here this summer and I asked them what they would ask you and they said they want to know what you would advise teachers – what you would advise teachers – how they should teach the constitution.

SCALIA: Well, these are teachers – what level?

LAMB: Oh, they’re high school.

SCALIA: Oh, high school? Oh, okay.

LAMB: Maybe, how would you want the constitution taught in high schools?

SCALIA: Well, first of all, I am appalled that Americans get out of high school, get out of college, even get out of law school without ever having read the federalist papers.

I mean, thing number one, if – if you want to have the proper respect, and indeed awe that you ought to have for the United States Constitution – thing number one is to realize how brilliant were the men who put that piece of work together and that shines through in the Federalist Papers.

I am always astounded – I can ask a group of law students, ”How many of you have read the Federalist Papers,” and you know, it’s maybe 6 percent or something like that. You should not be able to get out of high school without being exposed to what the Framers thought they were doing.

LAMB: Do you have to – is it really something you should read in high school; the whole thing?

SCALIA: The whole thing, yes. People read, you know, number 48, the famous numbers. But, only if you read the whole thing do you realize what a breath of knowledge these people had.

They were not doing it be the seat of the pants. They – they had experience in various systems of government in this country and abroad and from that experience they deduced, or they applied what James Madison called at the convention.

He says, ”Gentlemen, we are engaged in the new science of government.” Nobody had ever tried that before and people ought to appreciate that. This – it had never happened before and it will probably never happen again that a system of government will be devised by a seminar.

I mean, a three month long seminar composed of the political leaders of the entire country. That won’t happen again. And you can’t appreciate that unless you seep yourself in the times, including reading the Federalist Papers.