I see where Justice Scalia has been claiming to be the Court’s one true originalist again.
“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.
When I ask students who profess to be originalists to define the term, the answers generally come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share. The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?
If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.
Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.
I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.
Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”
We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.
When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.
Over at Dispatches from the Culture Wars, Ed Brayton recently said it best:
“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”
Indeed. And intellectually dishonest about it, to boot.