g. Tribe also disagrees with Scalia's view that it is the legislature and not the courts which is the principal protector of the peoples' liberties. (As Dworkin points out, Scalia is somewhat inconsistent on this point). Scalia Tribe says would protect individual rights by preserving them from further change. The result, however, of Scalia's approach is often rigid, hidebound rules which prevent the Constitution from being sufficiently elastic to accommodate needed change. Trop v. Dulles, 356 U.S. 86 (1958). a. Tribe's central argument is that Scalia's limited view of the proper role of the judge in constitutional interpretation (he has little to say about statutory interpretation) oversimplifies and unnecessarily constricts the necessary degree of freedom a judge must have to construe properly the Constitution. In other words, Scalia in his view oversimplifies reality. f. Since erroneous interpretations of a constitutional provision are likely to have a wider impact and cause greater damage than a mere error in statutory interpretation, it is essential in Scalia's view that judges avoid imposing their own subjective views in interpreting them. Moreover, not only does judge-made law in the constitutional arena represent error, but those errors often in recent history have had the effect of restricting the capacity of legislatures to enact certain types of legislation such as by refusing state courts the power to admit evidence in a criminal trial which was obtained by an illegal search or indeed to restrict individual liberties, such as in modern social or regulatory legislation which has restricted private property rights. |
