Justice Scalia and Originalism: May They Rest in Peace
February 15, 2016
As a jurist, Antonin Scalia will likely be remembered most for championing the “originalist” view of constitutional law, that is, the view that in determining how constitutional provisions should be applied today, we need to adhere without deviation to the “original” meaning of the provisions. Scalia maintained this is the only legitimate way for an unelected judiciary to apply the Constitution because otherwise they would be acting as legislators. Scalia repeatedly heaped scorn on the view that judges should interpret constitutional provisions in light of contemporary conditions and standards.
The originalist view has some superficial merit, which, in part, explains why it continues to have supporters. On this view, judges are not influenced by their personal beliefs. Instead, they are objective legal technicians, who hold their positions because they have the skill necessary to understand and apply the constitutional manual. They’re like plumbers but with more education because, you know, the piping in our legal system is more complex than the one in your bathroom.
But the alleged objectivity of originalism is a pernicious myth. To begin, the Founders themselves did not adhere to originalism, so originalism is predicated on the paradoxical position that we should respect the Founders by rejecting their own understanding of the Constitution. Moreover, Scalia, like all judges, interpreted constitutional provisions through his own ideological prism. The mask of originalism was simply used to camouflage his agenda.
How is an originalist supposed to determine the meaning of a constitutional provision? According to Scalia, one starts, and ideally ends, with the text. Just read the provision in question.
Fine, the Constitution does contain a number of provisions that are specific and, at least arguably, unambiguous. For example, one must be at least thirty-five years old to be the president (Art. II, sec. 1) and an argument that “years” in this provision really means “Martian years” is unlikely to be found persuasive. But precisely because these provisions are unambiguous they have not been the subject of much litigation.
On the other hand, a number of provisions in the Constitution are very broadly worded and do not provide a clear, definitive demarcation between constitutionally permissible and constitutionally impermissible practices. This is especially true with those provisions—most of which are found in the Bill of Rights—that limit the government’s ability to interfere with or restrict civil liberties. For example, the Fourth Amendment prohibits the government from conducting “unreasonable searches and seizures”; the Fifth Amendment states that no person can be deprived of life, liberty, or property “without due process of law”; and the Eighth Amendment prohibits “excessive” bail and fines and “cruel and unusual punishments.”
So how does a jurist such as Scalia, who believes the Constitution’s text must govern the application of the Constitution to a contemporary dispute, determine whether a punishment is “cruel” or “unusual”? Scalia’s answer was that we need to look to history, which will provide the requisite context for interpreting constitutional provisions. Scalia maintained that by examining how those who approved and adopted the language in question understood the language, we can determine what the government can and cannot do. For example, if at the time of the adoption of the Eighth Amendment capital punishment was an accepted practice then, according to Scalia, it is clearly unjustified to argue that capital punishment is forbidden by the Eighth Amendment.
But the more fundamental flaw is to assume that the Founders wanted us to use detailed historical research, or perhaps necromancy, to discern the specific things they were thinking of at the time they wrote the Constitution. As indicated, Scalia argued that capital punishment cannot be cruel and unusual because it was practiced at the time the Bill of Rights was adopted. However, that assumes that what those who proposed and ratified the Eighth Amendment intended was something such as: “The government cannot utilize punishments considered cruel and unusual at the time of the enactment of this amendment.” Where is the justification for this interpretation? There isn’t any. There is certainly no justification in the text itself because the Founders did not include the language I italicized—although it would have been easy to do so. The Constitution doesn’t have a word limit.
Given that the Founders hoped the Constitution would endure for generations, it is much more plausible to infer that what they intended was to establish the principle that the government may not impose any punishment that, given the circumstances of the time, is considered cruel and unusual. That’s why they used the open-ended language. As indicated by the minimum age requirement for the presidency and numerous other provisions, when the Founders wanted to be very precise, they had no trouble doing so. So they could have listed the specific punishments they considered cruel or unusual. Instead they deliberately opted for more general guidance. Likewise with other critical provisions, such as the “due process” clause or the prohibitions on “unreasonable” searches and seizures. They recognized they could not predict the future and they trusted future generations to apply these general principles intelligently, consistent with the underlying objectives of these principles.
And, in many instances, the Supreme Court has done so. For example, in 1967 the Supreme Court determined that the Fourth Amendment prohibition on an “unreasonable” search and seizure applies to wiretapping. But there was no electronic eavesdropping in 1791, so the Court had to consider what it viewed as the underlying objectives of the Fourth Amendment to reach its decision. To argue that the text of the Fourth Amendment along with knowledge of the types of searches the Founders specifically approved or disapproved could render precise the meaning of this provision is disingenuous or naïve.
In short, there is no basis for claiming that Scalia’s originalist method is more “objective.” His method relies on certain suppositions just as much as any rival method of constitutional interpretation and, if anything, the suppositions of the originalist view are more questionable.
In addition, Scalia himself ignored textual history when it suited his purposes. One of the legal positions for which Scalia was most noted was a rejection of the view that the government is not supposed to promote religion. Scalia, an extremely devout Catholic, never met any government endorsement or funding of religion he did not like. His rationale for approving government promotion of religion was that the Establishment Clause of the First Amendment supposedly only prohibited government explicitly preferring one (monotheistic) religion over another—the government could still promote religion in general. Yet, the history of the First Congress’ consideration of proposals for the Establishment Clause decisively refutes Scalia’s understanding of this provision. Specifically, the First Congress considered and rejected language that would have limited the Establishment Clause to a prohibition of preferences among religions and instead opted for very broad language prohibiting any government involvement respecting religion. (Justice Souter’s concurring opinion in Lee v. Weisman
provides a detailed description of the evolution of the language in the First Amendment.)
The reality is Scalia indulged in motivated reasoning as often, if not more frequently, than the justices and judges he ridiculed. The originalist position on constitutional interpretation should be laid to rest along with Justice Scalia.
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