Jacob Sullum

On other occasions, Scalia has joined the majority in whittling away at the guarantee against unreasonable searches and seizures, especially in the name of the war on drugs. But he also has written majority opinions rejecting infrared surveillance of homes, GPS tracking of cars and dog sniffs at doorsteps without probable cause.

Sentencing is another area where Scalia has shown concern for the rights of criminal defendants. He and Clarence Thomas led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment.

In Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an "enemy combatant," Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go. That is hardly the position of an authoritarian.

Scalia likewise has shown a decidedly non-authoritarian respect for freedom of speech in cases dealing with advertising, online indecency, flag burning, dog fight films, violent video games and criticism of politicians. I would also count in his favor (although many progressives would not) his defense of the right to arms and his opposition to the abuse of eminent domain.

Scalia's record of resisting government encroachment on individual freedom is by no means perfect. But on the whole he is more liberal than some of his purportedly liberal colleagues.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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