Jack Balkin of the Yale Law School keeps a terrific blog that I link to and read often. On his blog today, he includes a reposting of a message he sent to a constitutional law listserv concerning Supreme Court Justice Antonin Scalia and his concept of originalism. The listserv thread concerned an article that was written by Steve Henderson comparing Scalia’s dissent in Lawrence v Texas (last year’s case striking down the Texas anti-sodomy law) to Justice Taney’s decision in the infamous Dred Scott case, which returned a slave to the slaveowner and struck down the Missouri compromise, as well as a reply to Henderson’s article written by Matthew Franck.
It’s an interesting question, and I tend to agree with Henderson that Scalia’s originalism, if taken seriously and applied consistenly, would have reached basically the same conclusion that Taney reached. In part, at least, their reasoning was the same (though Scalia has criticized other aspects of Taney’s decision).
But the deeper problem, as Balkin notes, is that Scalia doesn’t consistently apply his concept of originalism, just as I have argued that Bork and many other prominent conservative legal scholars do not apply their legal theories consistently. As Balkin puts it,
Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy, and his favored values…
The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey [which guarantee rights of abortion and contraception]. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia’s brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia’s body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.
The fact is that our understanding of constitutional law does change over time, and usually for the better. Henderson’s article provides a couple of great examples in regard to the 14th amendment and how the application of it has changed from the time of its inception. The first he takes from Penn law professor Kermit Roosevelt (paranthetical aside – I wonder if he’s related to the Kermit Roosevelt who ran the CIA coup that overthrew Mohammed Mossadegh in Iran in 1953 and installed the Shah in power?):
Kermit Roosevelt, a University of Pennsylvania law professor, said that when the court refused to update notions of fundamental liberty, the spirit of the Constitution’s promises goes unfulfilled. Roosevelt said an 1873 case called Bradwell v. Illinois was a good example.
“In this case, an Illinois lawyer sued so she could become a member of the state bar, which didn’t accept women,” Roosevelt said. The 14th Amendment, which provides everyone with equal protection under the laws, had passed five years earlier. Still, the court ruled that the ban on female lawyers was OK, because the founders provided a woman “no legal existence” beyond her husband. The “paramount destiny and mission” of women was to be wives and mothers, the court said.
“Today, this would be a no-brainer violation of the 14th Amendment,” Roosevelt said. “That’s the way in which the change in societal attitudes should inform our interpretation of the Constitution.”
The second example comes from the same time frame:
The University of Tulsa’s Finkelman said the 14th Amendment in particular was written to be open-ended. John Bingham, the Ohio congressman who was the amendment’s primary author, once said its charm was its “indefiniteness,” Finkelman said. More than 130 years later, many subsequent applications of the 14th Amendment seem obvious.
“The language of the amendment makes it inherently flexible,” Finkelman said. “For example, at the time the 14th Amendment was written it was quite common to conduct a criminal trial without a lawyer representing the defendant. That was not considered a denial of due process of law. But today everyone, even Scalia, would accept the notion that a trial can’t be fair if the defendant doesn’t have an attorney.”
The point, which I’ve been trying to make in other entries on constitutional law over the last couple weeks, is that no matter how much anyone wants to pretend that they are “strict constructionists” who look only at the “original intent” of the framers, our understanding and application of constitutional doctrines can and has changed over the decades, indeed that it must do so. I understand the emotional appeal of pretending that every opinion is anchored securely in a set of unchanging standards, but it’s just not honest to pretend so when even the most dogmatic originalists like Bork and Scalia will easily set aside their loudly proclaimed legal theory in order to insure the outcome that they want. And it’s disingenuous to continue to claim, despite that fact, that one is an originalist and that only their opponents engage in subjective application of legal justifications.