Scalia Blowing Smoke Again

From a speech at the University of Vermont:

Scalia defended the court's ruling in the Bush versus Gore decision that settled the 2000 presidential race. He said it met the test of constitutional originalism by relying on the Constitution's clause saying that citizens will have equal protection before the laws.

In the Florida recount halted by the court, "some people had their votes counted and others did not," he said.

I hope he was misquoted. There is almost no evidence that the Framers of the Fourteenth Amendment believed that the Amendment was designed to remedy inequalities in voting. Indeed, the Amendment was drafted the way it was to ensure that it did not give whites and blacks (or men and women) equal rights to vote. The right of black suffrage was not guaranteed until the Fifteenth Amendment in 1870; the right of woman suffrage was not guaranteed until the Nineteenth Amendment in 1920. If the Fourteenth Amendment already guaranteed equal protection of the laws in voting, the Fifteenth Amendment and Nineteenth Amendments would have been entirely superfluous.

In the debates surrounding the adoption of the Fourteenth Amendment, voting was considered a "political" rather than a "civil" right. The Fourteenth Amendment was intended to protect "civil" equality, but not political equality. Even though questions of ballot counting and black suffrage are distinct, they are both questions about equality in voting rights, and were not part of the original understanding of the Fourteenth Amendment. The application of the Fourteenth Amendment to voting questions comes much later with the Warren Court. (You know, the Court that originalists like Scalia don't seem to like very much).

Again I really hope Scalia was misquoted here, because this is the sort of originalist argument that gives originalism a bad name. I don't have problems with making arguments about original understanding. They are as legitimate as any other form of constitutional argument. What I have a problem with is people like Scalia insisting that their views are justified by originalism (and their opponents lack fidelity to the Constitution) when they haven't a clue about the actual history or are just making the history up. When people like Scalia do this, they are using originalism as a mantra to rationalize their own political values. They are doing exactly what they accuse those who disagree with them of doing.

By the way, I have the same complaint about Chief Justice Taney's opinion in Dred Scott (see this post for details). Taney insisted that fidelity to original understandings meant that blacks could not be citizens and that anyone who said otherwise was just writing their political values into the law. Like Scalia, Taney didn't know the history. At the time of the founding blacks were citizens in several states. But Taney used originalism to push his own political agenda-- in this case the protection of the slaveocracy.

My larger point is that originalism as actually practiced by Scalia (and Taney too) is bad originalism. It is sloppy and self-serving. It does not do the hard work necessary to understand what the different generations who drafted the Constitution and its various amendments were trying to do, and what their commitments might mean for us today. It is sloganeering rather than serious historical analysis; it uses the mantra of originalism as a weapon to attack political results it does not like and defend political results it does like. Bad originalism of this sort is virtually identical in my view to the sorts of judicial decisionmaking that Scalia continually fulminates about. Before he makes another of these speeches, he ought to take a good hard look in the mirror.

One might well adopt a form of historical inquiry that treats the commitments of past generations as stating principles more general than those generations understood their commitments to be. So even though the Fourteenth Amendment was specifically not intended to reach voting rights and was intended to secure only a limited set of equality guarantees, today in our society we understand that equality cannot be cabined in this way, and so the Amendment must reach things that its framers did not intend to reach, like voting rights and racial segregation of the public schools. That is a perfectly sensible way of using history. But it is not Scalia's version of originalism, or at least not the version he defends in his speeches, because it allows us to recast the framers' principles at higher levels of generality. It is, rather, a version of living constitutionalism, the very thing Scalia says he despises.

One last point: Even if we say, as Bush v. Gore does, that the Fourteenth Amendment applies to the standards for counting votes in judicially supervised recounts, the remedy the five person majority ordered in that case does not secure equal protection. The court did not send the case back down to the Florida courts under a unified standard that would have cured the Equal Protection problem. Instead, it simply stopped all the recounts, which guaranteed that, in Scalia's words "some people had their votes counted and others did not." Whether you think the equal protection arguments in Bush v. Gore are justified or not, the remedy was inconsistent with that theory of the case, and it seemed pretty clearly designed to reach a particular result-- the end of the Florida recounts and the election of George W. Bush. Scalia repeatedly complains about judges who write their political preferences into law; once again, he needs to take a good hard look in the mirror.