COMPROMISE….Over at the Volokh Conspiracy, guest blogger Eric Muller made a comment that caught my eye today. In a post about the University of Michigan affirmative action case that was argued before the Supreme Court last week, he made a side comment about another case in which the court was asked whether a child could be allowed to testify via closed circuit TV. Anton Scalia, he said, made an interesting point:

He pointed out that the state really had two strong interests in the case: protecting the child, and convicting the defendant. The state was, in effect, pretending that the only way it could protect the child from psychic trauma was to let him testify from a remote location. But Justice Scalia pointed out that this was not so: if the state really wanted to protect the child, it could just not call him as a witness at all. The state was really trying to achieve both of its interests at the same time, and at the expense of the defendant’s constitutional rights. What the state needed to do, Scalia argued, was choose. If it couldn’t protect the child and convict the defendant, it needed to choose which one meant more to it.

This actually strikes me as typical of Scalia’s black-and-white view of the law ? and one that doesn’t stand up to even mild scrutiny. Why does it make any sense that when there are two opposing rights (or interests), you should be forced to make an exclusive choice between one or the other? Given that both interests are important, why is it philosophically improper to make small compromises that allow both interests to be mostly served, rather than discarding one interest entirely in favor of the other?

Far from being “brilliant,” this kind of thing strikes me as being at the heart of fundamentalism of all kinds: no compromise is ever possible, and the world is always viewed in the most Manichean terms possible. It may well be that remote testimony is a bad idea, but the best argument for this is simply that the right to face your accuser is far more important than the state’s interest in getting child molesters off the street. Scalia’s suggestion that compromise is ipso facto wrong in the face of two competing interests seems like the poorest possible justification.

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