Balkinization  

Wednesday, February 18, 2004

JB

Antonin Scalia Opposes Brown v. Board of Education, Equal Rights For Women

At least that's what follows from the stump speech he has been giving in various forms around the country:

[Scalia] derided proponents of an opposing judicial philosophy that has reigned for the past half-century and who see the Constitution as a "living document." Such a notion is "phony," he said, adding, "People really believe this nonsense."

The steady application of that philosophy, he said, has meant that justices are free to interpret the document how they wish -- freeing the court from the text.

Such an approach is intellectually suspect and dangerous, he said.

"It's a legal document," he said of the Constitution. "It says some things which are permanent, and it doesn't say other things."

Scalia said originalism used to be orthodoxy. Now, people who profess it are looked on "as if its some kind of an affliction -- like when did you start eating human flesh?"

He said originalism is necessary to constrain judges and keep the balance of power in the country.

"You either have to abandon this idea of a living constitution, or essentially you say to your judges, govern us with no constraints -- except your own judgment.

"I'm not willing to do that."


I guess this is probably as good a place as any to reprint a posting I put on the CONLAWPROF Listserv (run by the most excellent Eugene Volokh) last year. My argument was that Scalia talks out of both sides of his mouth. He supports originalism when he doesn't like a precedent, and he completely ignores originalism and argues for stare decisis when he likes a precedent. This allows him to craft judicial opinions that hew closely to his poiltical views (which are an interesting mix of libertarian and social conservative). Hence there's no reason to think that originalism, at least in the way that Scalia practices it, constrains him any more than the Justices he derides. Here's the post from last year:

* * * * *

[T]he problem with Scalia's use of originalism is twofold: First, it is often badly done, which is the point that Professor Franck makes about [Chief Justice] Taney's originalism [in Dred Scott v. Sanford]: Both Scalia and Taney do questionable history in order to achieve a political conclusion that each likes. Then each of them has the nerve to insist that any other way of interpreting the Constitution is illegitimate and, in Scalia's case, to denounce and ridicule anyone who disagrees with him.

The second problem with Scalia's use of originalism is that it is opportunistic. Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy,
and his favored values. You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases. Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations. But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment's section one, at least as originally understood by its framers. (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed. (See Jed Rubenfeld's 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman's Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them. The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it's unclear how either Scalia or Thomas could have joined the Adarand decision.

At the end of the day, Scalia may be correct that the best translation (in Larry Lessig's terms) of the original understanding is a strict colorblindness rule. But I doubt it, and even if that is so, Scalia refuses to adopt that sort of translation methodology, because it is the very sort of living constitutionalism that he disdains. So he can hardly employ it to justify his position in the Michigan cases.

Stare decisis [respect for previous precedents] must temper originalism, and that is how many non-originalist decisions like Bolling v. Sharpe [which struck down segregation in the D.C. schools under the Fifth Amendment's Due process clause] (and Adarand) [which held that federal affirmative action programs are suspect under the Fifth Amendment's Due Process clause] might be justified for an originalist. The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey [which guarantee rights of abortion and contraception]. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.



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