Scalia and originalism

Antonin Scalia has been something of a pain in my backside for his entire tenure on the Supreme Court. He is the most dangerous kind of reactionary in that he possesses a brain and is adept at using it.

Okay, calling him a reactionary is probably unfair. At his best, he is conservative in the most literal sense of the word, preferring to keep what works rather than rushing headlong into the new. Unlike the nitwits who populate Fox News and much of conservative talk radio, Scalia can persuasively argue in support of his positions in a way that makes even those of us who habitually disagree with him grudgingly concede that he might have a point.

In recent remarks to students and faculty at Hastings College of the Law, Scalia called his greatest legal achievement the advancement of originalism.

Originalism, as applied by Scalia, is a theory of interpreting the 1789 Constitution and later amendments according to the meaning understood at the time they were ratified.

As Scalia explained it during his talk, "I interpret in the way it was understood by the society at the time."

It's a shortcoming of many liberal critics of Scalia that "originalism" is often discussed as if all of the amendments are to be understood in a 1789 context as well. In fact, what Scalia is saying is that what the text says has to be understood in the context of the time in which it was written, whatever time that was.

This approach has its merits. As Scalia noted, it gives "easy, easy answers" to a number of questions. An opposing approach, which he calls evolutionism, regards the Constitution as a "living document," whose text is subject to interpretation according to the mores and customs of the present. As Scalia sardonically notes, "Every day is a new day for evolutionists."

(I will resist speculating what Scalia thinks of the scientific theory of evolution. Stay focused, stay focused....)

Scalia would prefer to make new laws rather than to reinterpret the Constitution. In his eyes, the Fourteenth Amendment, for instance, was intended to apply to racial discrimination and should not have been extended to apply to sexual discrimination: "If the current society wants to outlaw sex discrimination, hey, we have legislatures."

So what do those who consider originalism an invalid, or at least insufficient, way of interpreting the Constitution think? Here's an excerpt from a story about newly retired Justice John Paul Stevens:

"To suggest that the law is static is quite wrong," he says. Stevens argues that "the whole purpose was to form a more perfect union, not something that's perfect when we started. We designed a system of government that would contemplate a change and progress."

Now, I admire Stevens, but his argument simply misses Scalia's point. Scalia admits that society can change; he simply contends that government should adapt to those changes through legislation rather than reinterpretation of the Constitution's plain text.

The article about Stevens continues:

This clash of views [between Stevens and Scalia] is exemplified in a 1990 opinion Stevens wrote, which invalidated the Illinois patronage system as a violation of employees' First Amendment rights to freedom of association.

Stevens notes that when he first encountered the question, he thought the claim had no merit. After all, as Justice Scalia would subsequently observe, patronage existed at the time the republic was founded. But Stevens, upon examining the question, reached a conclusion exactly opposite of what he originally thought.

"It did persuade me that some things that have been part of our law for a long, long time are not necessarily correct interpretation [sic] of the Constitution," he said. "The best example of that, of course, is racial discrimination. ... But the patronage system, it seemed to me, was a misuse of government power; the government has a duty to act impartially."

Being viscerally opposed to many of the conclusions Scalia has reached over the years through his originalist interpretation of the Constitution, I used to think that originalism was daffy, to put it kindly. In fact, I used to consider it a mere fig leaf to justify mean-spirited decisionmaking intended to further political ends. However, now I can see it could be the basis for a justifiable theory of the Court's role in the federal government. The Court and the federal court system would play a far less active role in forging our society than they have in the past. It would force much more of our national debate to be exercised through Congress and state legislatures.

One question, of course, is whether this would be a good thing for the country. Another is whether Scalia and his philosophical brethren on the Court are deciding in full, consistent accordance with originalism. Not being a lawyer, or even an exceptionally well-read amateur Court watcher, I don't have an answer to either question. (For instance, I assumed that an originalist reading of the Constitution would have resulted in a different conclusion in Brown v. Board of Education. In fact, the Brown Court examined the Fourteenth Amendment's ratification debate and racial segregation practices at that time -- precisely as originalism demands -- and concluded: "This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced." So much for my legal expertise.)