Chapter 2: The Right to Wear a Hat—and Other Afterthoughts
A further qualification is needed to understand the legitimacy of decisions recognizing privacy rights. Cases that recognize such are the product of countermajoritarian decision-making. That is, unlike the bank authorization issue, which provides the template for thinking about the Madisonian framework of interpretive supplementation, rights claims that rely on interpretive supplementation reject conclusions reached by majoritarian institutions. This chapter introduces an extended Madisonian framework of interpretive supplementation to justify judicial decisions that override decisions reached by majoritarian institutions (i.e., the legislature and the executive branch). In doing so, it pays careful attention to Justice Scalia’s comments in favor of interpretive supplementation of the First Amendment speech and press clauses. The text provides no support for non-verbal expressive conduct—for performing music, for instance, or for burning the American flag—yet Scalia consistently voted to protect such conduct in the face of efforts to stifle it. Analysis of Scalia’s decisions concerning these matters establishes the extent to which the extended Madisonian framework of interpretive supplementation is embedded in American constitutional law.