Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.

 

30 thoughts on “Now Let’s Talk About “Originalism”

  1. “Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.”

    Let us not forget Scalia was appointed to the Supreme Court by President Ronald Reagan, a former G-grade movie actor, in 1986. Matthew Tully quotes U.S. Rep. Todd Young in his column today as saying, “…giving Obama an election-year appointment to the Court would be a disservice to the nation because it will have implications well beyond Obama’s final months in office.” 1986 was thirty years ago; many of today’s registered voters hadn’t been born yet. What are the implications of Reagan’s final months – or years – in office when we were not told he suffered from Alzheimer’s disease till after he left the presidency. While he was married to actress Jane Wyman, they contracted to build a housing development which contained a “grandfathered clause” that no Mexican would ever live in that development. Do you believe his prejudice faded as his movie career did? Can you equate his racism with any of Scalia’s decisions on the Supreme Court – “having implications well beyond his final months (or years) in office”?

    Today’s Republican members of Congress know full well the meaning of the law as written in the Constitution but chose – for paid-for partisan reasons – to ignore the facts as stated. The length of time any president has left in office does not govern his powers; including his RESPONSIBILITY AND DUTY to appoint members to the Supreme Court. What is the explanation for the list of other President Obama’s court appointees that have been ignored? All of this is part-and-parcel to the appointment to replace Antonin Scalia to maintain a fair (and presumed unbiased) number of members of SCOTUS; necessary to assure a majority vote on issues brought before them.

  2. Oops; again, my self-editing missed an error. That should read “B-grade movie actor” not “G”.

  3. Thanks for pointing me to the Posner article. His best line : “It is possible to glean from judges who actually are loose constructionists the occasional paean to textualism, but it is naïve to think that judges believe everything they say, especially when speaking ex cathedra (that is, in their judicial opinions). ” I guess it sometimes comes down to “it depends on what the meaning of “is” is.”

  4. The “Original Intent” included slavery as they were a bunch of slave owners. They kept the slaves for the rest of their lives and the lives of their wives too. Women did not count for much either….back or white. Their “Original Intent” was in serious need of improvement. Thank goodness we have improved on the original version. Scalia did a lot of harm to a lot of people for three decades. It is time for more improvement. Maybe a President Clinton can put Former President Obama on the court. He is young and healthy and a constitutional scholar. Perfect.

  5. Law is not the only field where originalism is used by those who want to produce results that are consistent with their own political preferences and religious beliefs. Fundamentalists in every religion use the same approach and apply it to the Bible, the Koran and all other religious texts. And they get the same destructive and backward results that are embraced by magical thinking people everywhere.

  6. Looks like politics is heating up. I guess it’s that time of the year. Appreciate what you have done in Muncie. You have spent your entire adult life making life better for those who deserved equality. Bravo my friend. az

  7. I love your intellectual honesty Sheila. Thanks for a fine analysis of ‘originalism’ and debunking the common stupidity the prevails.

  8. Thanks Sheila for the English lesson,
    “Anthony Scalia was a brilliant man who used his brilliance to dissemble…”

    A great word added to my vocabulary: dis-sem-ble (di sem’bel) vt., vi. -bled, -bling, to conceal (the truth, one’s feelings, MOTIVES, etc.) under a false appearance—-dis-sem’blance n.—-
    dis-sem’bler n.

    Wow!! Sheila’s Blog is really “hitting on all cylinders” this morning.

  9. Besides authoring some colorful and hurtful language, Scalia was also far from being as consistent on the role of the judiciary and its relationship to the other branches as his supporters suggest: http://blog.wallack.us/2013/06/justice-scalia-thinks-supreme-court.html. And consider that he was a man who couldn’t comprehend that a cross was a religious symbol that didn’t really serve to honor Jews or other non-Christians. http://blog.wallack.us/2012/12/christianity-cross-arent-religions-or.html

  10. “to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.” This is the definition of the neuro/psychological term “confirmation bias”. Our brains automatically create support for conclusions we already believe.

  11. I was just reading in the news this morning that Jeb Tweeted a picture of his killing machine this morning accompanied by a single word “America.” While the press is having fun with the fact that the manufacturer in Columbia NC where Jeb was visiting started by arming Nazis, many of us wonder when and how killing became emblematic of America.

    Thank you Justice Scalia for browbeating your fellow Justices into in effect adding words to the Second Ammendment that turned us into a bought and paid for advertising agent for the NRA. We have successfully added guns to tobacco, beer, sports and lottery tickets as iconic of our brand as ignorant redneck “Cable Guys”.

  12. While I’m grumping this morning:

    I get sick of Facebook entries implying that the Whitehouse is occupied now by trailer trash unfit to represent America when in fact most of the rest of the world sees the current occupants as the absolute best we can be trying to lead a bunch of yahoos.

    We have recreated the Lincoln days.

  13. Actually Posner and Scalia’s theories aren’t that far apart. Originalism requires that you consider what principles the framers thought were important and deserved protection. The problem with liberals is that they go far beyond Scalia and Posner and believe it is okay to twist the words of the Constitution to adopt policies they like…as long as those are liberal policies. The day will come though when there are conservative activists justices on the court enacting conservative policies and liberals will scream about the lack of deference to the legislative branch and argue that the justices should stick to the actual words of the constitution and statute and the intent of the drafter.

  14. I agree with Paul, but politics isn’t reality. In the real world way above politics is what works; what’s in tune with reality. Some ideologies create progress, serve the greatest good, move humanity towards actualization and some towards less.

    Politics is culture, the assumptions we all make about how people like us behave under different circumstances.

    That can be important in small ways but it’s unrelated to what’s effective for our species as a whole.

  15. Pete,

    “Some ideologies create progress, serve the greatest good, move humanity towards actualizations and some towards less.” “We have recreated the LINCOLN DAYS”

    Absolutely right on both accounts. As I previously said, Sheila’s Blog is really “hitting on all cylinders this morning.” I’ll bet it will be extended, at least, into the afternoon.

  16. One of the lessons that we should have, but didn’t, learn from WWII Europe is that what extremism spawns is extremism of all flavors. Extremists like Rush Limbaugh, Lee Atwater, Karl Rove, Grover Norquist, Dick Cheney, the Koch Bros created Donald Trump and Bernie Sanders as well as their intendeds Ted Cruz and Marco Rubio.

    Now nobody’s in control. That power vacuum will be filled. Witness the Middle East.

    The middle of the road will be very hard to get to from here.

  17. Pete,

    “I agree with Paul, but politics isn’t reality. In the real world way above politics is what works; what’s in tune with reality.”

    The Nazi’s learned that hard lesson at Stalingrad. The South at Gettysburg. Here we are again with the Republican/Tea Party with the insane idea that African-Americans react in a similar manner as the Jews. No doubt “Lincoln Days” are upon us again. But no one will win this time. We’re ALL going to lose.

  18. More about Lincoln Days:

    Back in the late 80’s and early 90’s Roger Staubach and I teamed up with two African-Americans, Marvin Crenshaw and Roy Williams to win the national voting rights battle over one man, one vote in Dallas. Roger headed up the referendum forces and I neutralized the oligarchic racial system. Marvin and Roy took the lead in the lawsuit that the Bush administration finally, after many years, withdrew their opposition.

    I’m from a very strong sports background like Roger Staubach. Speaking only for myself, one factor in my long commitment to racial justice is my knowledge, through my close friendships with the top African-American athletes, that the white community will not prevail in a war against the African-American community. Their PHYSICAL KINETIC INTELLIGENCE is much greater than whites. Just look around in the sports world. You have to be “out of your fucking minds” to think otherwise. The British learned that hard fact in the “Zulu Wars.”

  19. In my very humble opinion the rigorous pursuit of “intellectual honesty” is the core ingredient in any credible decision making on these issues just as it would be in regard to all others. I would imagine that anything based on variations of the opposite would lead ultimately to chaos and decisions rooted in what would be akin to quicksand that do not hold up over time and then create additional problems that need resolution. One would hope that Supreme Court appointees would, given the gravity of their decisions, strive for outcomes based on intellectually honest analytical processes where the merits of any particular issue are evaluated as it applies to the maintenance of the common good. Personal peccadillos and biases, whatever they happen to be should not intrude. Of course, this likely only happens on that dream work that NASA hasn’t discovered yet.

  20. Marvin,
    You wrote “I’m from a very strong sports background like Roger Staubach. Speaking only for myself, one factor in my long commitment to racial justice is my knowledge, through my close friendships with the top African-American athletes, that the white community will not prevail in a war against the African-American community. Their PHYSICAL KINETIC INTELLIGENCE is much greater than whites. Just look around in the sports world. You have to be “out of your fucking minds” to think otherwise. The British learned that hard fact in the “Zulu Wars.”

    I’ve a feeling that with your above comment you’ve positioned yourself on a really slippery slope where the late Arthur Jensen of Berkeley found himself after his published conclusions re: race-based differences in intelligence.

  21. BSH,

    “I’ve a feeling that with your above comment you’ve positioned yourself on a really slippery slope”

    But BSH I’m not about writing books. I’m about attempting to stop a disaster that I’ve been successful predicting step by step since the election of George Bush #2.

    You need to admit that you’re not for climbing on very dangerous slopes. I don’t blame you.

    I’m sure your son can compete with the best of African-American athletes. That ‘s why he was an All American football player. I’m not worried about him. I’m worried about the racists in the Southern Baptist Convention, Tea Party and other more dangerous groups who have spread for years a toxic anti-Semitism with no reaction from the Jewish leadership and believe after the anti-Semitic virus has mutated into the African-American community that the same in action will occur.

    Just read the recent issue of the Southern Poverty Law Center covering comments from the white supremacist leaders about how “African-Americans do not know how to organize.”

    I take this warning and your previous one very seriously. But I’ve been at this a lot longer than you. And also very much deeper as well as having a lot less to lose.

    Thanks for caring.

  22. BSH,

    Maybe I didn’t make myself clear enough. I can’t write like you can. I’m not a journalist.

    I’m for preventing a Race War that another journalist, Carl Rowan, predicted many years ago in
    “The Coming Race War.”

    That’s pretty much what I’ve been about since I saw the reactions to my father when he made the decision as the Gator Bowl’s selection committee chairman in 1961 to break the color barrier in college football in the “Deep South.”

    I especially remember his telephone conversation with Senator Estes Kefauver “the champion of racial justice” warning and telling him “that he was moving too fast.” That was nothing to the threats my father received from his corporate competition.

    BSH, I’m not stupid.

  23. Few of us can read Greek but we do well enough in translation? Same with the Bible though we know it went from Greek into Latin but before it was Greek it was Aramic?
    So, seeing words of English from the mid 1750’s isn’t a hard task in comparison though it would have been better had the Constitution been written in Latin. Newton’s works were. I don’t think Scalia was as described. His view was that propositions were either true or false, either the Constitution addressed them or it did not. Did he care a fig for “intent”? Let me know AFTER you have read his book, Reading Law.

  24. Leon,

    “Did he care a fig for “intent.”? Let me know AFTER you have read his book, Reading Law.”

    Don’t believe everything you read. It might be more cogent to examine his decisions from the bench all these years.

    Likewise, I would suggest not judging Adolph Hitler based ONLY on his book: “Mein Kampf”

  25. @The Blog

    After being compared to Arthur Jensen at Berkeley, I thought it would be wise to protect my reputation so I purchased another URL this morning: CrucifixionNetwork.com

    This URL is only aimed at Christians, Jews and Unitarian/Universalists [at the moment]. I’m sure, in the future, I will be forced to add a few more entities.

    I must be going crazy. I’m starting to feel like Patrick Henry “the man without a country.”

Comments are closed.