Justice Scalia gave a speech in Puerto Rico yesterday in which he bashed the idea of a "living constitution" (and rightly so, I think, this idea is far too vague and insubstantial to be taken seriously) and proclaimed himself an originalist:
In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."
"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.
According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.
First of all, let me say this: Justice Scalia, please don't start speaking of yourself in the third person. It's undignified and crass, and frankly, Brayton doesn't like it one bit. Secondly, bear in mind yesterday's post about Barnett and Scalia and Scalia's own words where he gives himself three different ways in which he can escape from the logical results of originalism if he chooses to. By what possible standard is this not leaving room for personal beliefs?
He even admits specific cases in which he would reject originalism in favor of his own personal opposition to, for example, public flogging. And many of his opinions have been decidedly and obviously non-originalist, most obviously in Raich last term. Barnett says what I've been saying for a long time, that Scalia is not really an originalist, despite his public statements to the contrary. He's only an originalist when it suits his purposes. When it doesn't, he picks and chooses among other modes of interpretation and jettisons originalism.
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Ed, maybe you've covered this before, but I'm curious as to your take on this. This post is written from the angle that Scalia is not a good originalist, because, well, he basically rules however he wants anyway. My question is, is there such a thing as a good originalist? That is, is the philosophy of "originalism" really any better grounded than the derided "living constitution"?
I think we can see the underlying purpose for originalism in Scalia's statement:
This is just a recipe for self-righteousness. The adherent believes that his conclusions are the inevitable result of cold reason, thus ensuring that he is (a) always right, and (b) not actually accountable for the consequences of his objective conclusions.
And thus this speech before the Federalist Society required him to stake this claim; and yes, the third person thing, didn't we get rid of that with Dole???
Another constitutional issue has erupted in Congress. It appears that Ted Stevens and Dennis Hastert "decided" that the different text versions of a bill weren't different, directed a clerk to change a certain number, and then proceeded to send the bill to Bush to sign. As on report on this provides:
Last week, before proposing his 2007 budget, President Bush signed into law the 2006 budget that would cut Medicaid and other programs by $40 billion over five years. Or so it seemed. It turns out the Senate voted on a different version of the bill than the President signed. In this case, the Senate clerk's office typed "36 months," rather than "13 months" in a section dealing with Medicare payments for oxygen tanks. "Staff discovered the Senate clerk's mistake in January, before the House took up the measure," CQ reported, "but the glitch was not disclosed" until last week. The right-wing covered up the problem because it isn't confident the Senate would not vote to pass the draconian budget measure again to fix the error. The Framers, however, knew exactly how they wanted a bill to become law. The Constitution's "Presentment Clause" (Article I, Section 7) mandates that "every bill," before the President signs it, "shall have passed the House of Representatives and the Senate." "Each house has to pass the whole law and the same law," said Alan Morrison, a lecturer at Stanford University Law School. "This is a case where the Constitution is very clear."
"WE JUST WENT AHEAD AND FIXED THE GLITCH": A congressional staffer said that "the Senate clerk's glitch had been noticed by staff in January," but the House was allowed to vote on the erroneous bill anyway. Once the House voted, the Senate clerk fixed the error and House Speaker Dennis Hastert (R-IL) and Sen. Ted Stevens (R-AK) "certified" the bill before sending it to the President. The mistake was then "re-discovered" last week, forcing the Senate to pass a resolution saying "the intent of the Congress in enacting the bill into law." The House has not yet taken up the Senate's corrective measure. Clearly, leaders in both houses of Congress would prefer to sweep the issue under the rug because the Senate and the House barely approved the bill after considering it five times. Few want to vote again on controversial cuts to services for the poor.""
It would be interesting to see how the 'originalist' in Scalia would make a determination in this instance??
Eric-
I think that there is a more coherent form of originalism than that offered by Scalia (who I really don't think is an originalist at all) or by Bork (who is an originalist, but gets it almost completely both in interpretation and application). The more coherent form is what Scott Gerber calls "liberal originalism", which is fairly close to what Jack Balkin refers to as "text plus principles" interpretation. The idea is essentially this: where the text is sufficently specific, you must stick with the plain meaning of the text; where the text is general and open-ended, as it often is in the Constitution, you must apply that general text in specific situations and the best way to determine how to do so is to apply the broad principles on which that text is based (principles which are found, among other places, in the Declaration of Independence).
To use the example that Balkin used in his recent commentary on Barnett's Taft lecture, the requirement that the President be 35 years old is a very specific rule. We can easily determine the underlying principle, the goal of that provision, as recognizing that the president should be a mature person. But because the text is specific in its application, a court should not abstract it based upon the broader principle and say, "We think a 32 year old is sufficently mature, so we'll allow that as well."
But take a provision like the free speech clause of the first amendment. Here the text is very general. Congress may not pass a law abridging the freedom of speech. But what does that mean precisely? Are there any limits on it? What about expression that is not specifically speech, like symbolic expression or song? What about things that the founders could not have envisioned, like tv commercials. Does a corporation have the same rights as an individual? In order to apply this general provision in concrete and specific circumstances, we have to appeal to the underlying principles upon which the text is based. We must ask what the goal of the text was and then implement rules that are in line with that goal in order to decide those cases.
The problem with conservative originalism is that, rather than appealing to those underlying principles, they will appeal to the actual practice at the time of the founding. But we know that the founders were quite inconsistent in their application of those principles, that they often had to compromise them for the sake of keeping the union together. Thus we get the brilliant principles of the unalienable rights of all people in the Declaration, but protection for slavery in the Constitution - the principles butted up against political reality and reality won (for a time, at least). But it is to those principles that we should look for guidance, not to the often compromised and inconsistent application of them by the founding generation.
haha, why were the Federalist Society sponsoring speeches in Ponce anyways. Any coincidence that the northeast had a major blizzard this last weekend, and now we're paying for the justices to go "give speeches" (aka vacation) in places that couldn't care less about the subject.
presumably all judges gravitate to an interpretive approach likely to lead to results consistent with their socio/political/philosophical bent. a "liberal" will lean toward a flexible approach that easily accommodates change. a conservative toward a more rigid approach. J scalia's chosen pillars of jurisprudence - the textualist version of originalism, maximum deference to democratic process, and heavy weighting of tradition - are quite predictable for a religious conservative. the J scalia sycophants' claim that applying an interpretive approach that naturally leads to agreeable results is indicative of extraordinary brilliance and ethical purity is laughable. that's just human nature. remarkable would be fidelity to an approach that necessitated ending lots of opinions with "contrary to everything I personally believe, I must conclude that ...".
so I tend to give J scalia the benefit of the doubt when it comes to consistency - but do deplore his world view.
The fact that he is referring to himself in the third person, as if he were an institution, merely confirms my belief that he is too smart for his own good.
The real problem with declaring oneself an "originalist," of course, is that it implies that there is one pure textual interpretation of the Constitution from which the court has consistently drawn. This is hogwash. Every justice, at least post John Marshall, has interpreted the Constitution as needed in different situations. Besides, every time I hear a justice describe how he's putting a principled textual reading of the Constitution above personal preferences, I'm reminded of Roger Taney's opinion in Dredd Scott in which he actually did put a plain textual reading above his personal abolitionist preferences, and look what the result was.
I don't blame Scalia for interpreting the Constitution as he sees fit. I do blame him for claiming that somehow his method is any less subjective than that of any other justice.