By David R. Dow
Before the rumors of Justice Antonin Scalia’s death were even confirmed, he was already being lauded as a transformational figure, eulogized as a jurist who made originalism a respectable mode of constitutional interpretation. This view cut across ideological and professional categories, with a broad diversity of journalists, academics, practicing lawyers, and politicians—including Jeff Toobin at the New Yorker, Dahlia Lithwick and Mark Stern at Slate, Geoffrey Stone at the Daily Beast, Bruce Miller on the New York Times Op-ed page, and, with perhaps a single exception, nineteen legal academicians polled by Politico—all quick to say that whether one agreed with Scalia’s view or not, he had accomplished something significant. Adam Liptak’s reflection for The New York Times, the day following Scalia’s death, quoted the estimable Richard Posner’s observation that Scalia has been the most consequential justice of the past quarter century.
Consider this, therefore, a dissenting opinion.
Justice Scalia was indeed a terrific writer. His views were regressive, but they were routinely expressed in memorable prose. His law clerks, at least those who have sat for interviews, seem to have liked him. So did many of his academic colleagues. He and the liberal icon Justice Ruth Bader Ginsburg were reportedly pals, which proves his circle of friends included at least some who do not share his ideological views. During oral argument, he made people laugh.
I never met Justice Scalia, but I am certainly convinced by the outpouring that he was a genial, gregarious, very smart man whose friends liked him.
His interpretive philosophy, however, which is what people say he will be remembered for, is the jurisprudential equivalent of climate change denial. It will be forgotten in a generation and laughed at in two.
Justice Scalia became the most well-known proponent of originalism, a theory which holds, basically, that the Constitution means at any historical moment what it meant to those who wrote it, ratified it, or were alive at the time. Although it is no doubt true that Scalia’s theory of interpretation presently appeals to some judges, politicians, and laypeople, the theory is both conceptually unworkable and morally illegitimate—and Scalia himself adhered to it only when it suited him.
We can begin with the practical problems, not the least of which is that human language does not work the way Justice Scalia’s theory suggests. Meaning is not a function of words alone; it is dependent on numerous aspects of the culture in which the words are used. For that simple reason, Justice Scalia’s attempt to know how Madison, for example, would answer a question that arises today is chimerical. We cannot know what Madison would say about whether the First Amendment protects somebody who posts threatening comments on Facebook, or whether the Second Amendment guarantees a property owner a right to own a fully automatic machine gun.
But that practical problem is only the beginning. For we might well know what some particular people meant by some phrase in the late eighteenth century, but why should we privilege the views of those we think we know? Why should Madison’s opinion count more than that of Hamilton’s wife? What about the people who might have attended the constitutional convention yet dissented from Madison’s view? What about the members of the state ratifying conventions? What about the voters who read the Federalist Papers and were persuaded the Constitution was a good thing? What about those who weren’t?
Here are the two related stubborn facts originalism cannot overcome: the idea of “original meaning” itself has no meaning; and the proof is that the so-called originalists themselves appear to have disagreed.
Of course, it is at times possible to say that a given group of people in a given community at a given time generally agree to some proposition. For example, it is undoubtedly correct to say that Jews living at the time of Jesus did not believe two men could marry one another. Originalism’s more serious problem, therefore, is precisely that we can safely make some historical generalizations, and once we do so, the very idea of originalism is politically, legally, and morally illegitimate.
In 1896, the Supreme Court decided the infamous case of Plessy v Ferguson, and upheld a law requiring blacks and whites to travel in separate train cars. The case arose under the Equal Protection Clause of the Fourteenth Amendment, which was ratified in 1868. Plessy was formally overruled in 1954 by the Court’s decision in Brown v Board of Education, which struck down laws requiring blacks and whites to attend separate schools.
Here’s what we know about the people who wrote the Constitution: The framers were either slave owners or nonslave owners who nevertheless offered legal protection to institution of slavery. And here’s what we know about those who wrote and enacted the Fourteenth Amendment: Although they did not endorse slavery, neither did they believe in racial equality. Thus, laws mandating racial separation became commonplace in the last quarter of the nineteenth century—that is, after Lee’s surrender at Appomattox. In other words, as a matter of originalism, Plessy is probably more right than Brown, and any theory that produces that result is a fatally infirm theory.
Here’s what else we know about the framers, of both the Constitution as well as the Civil War Amendments: They were all men, and they were all white. In 1873, the Supreme Court decided the case of Bradwell v. Illinois, in which the Court upheld an Illinois statute that prevented women from practicing law. In a concurring opinion, Justice Bradley, joined by two other justices, observed:
It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
Bradley’s language mirrored similar language in Plessy, which viewed blacks and whites as having been given different places in society by God himself. We might like to think our framers—wise men like Jefferson—did not hold such views, but we would be mistaken. When Justice Bradley said the Constitution could not possibly be understood as guaranteeing women a right to practice law, he was probably right as a matter of reading Thomas Jefferson’s mind. And indeed, Justice Scalia himself concluded, as a matter of originalism, that the Constitution does not prohibit discrimination on the basis of sex.
Whenever Justice Scalia got especially worked up over a disagreement with the Court’s majority—in the gay marriage case, for example—he would accuse the majority of imposing its own preferences on the country. This critique flowed often from Scalia’s dissenting pen, and it reveals something important: What Scalia claimed for originalism is that it allows the Court to be an impartial interpreter. And indeed, done well, originalism provides an illusion that when the Supreme Court decides a case, it is not imposing its own will, but merely interpreting someone else’s.
Putting to the side the matter that the “someone else” is necessarily a white male, the key word in the preceding sentence is illusion. Justice Bradley could therefore say, for example, that he had no problem with women practicing law, but his job as a judge required him to say what the Constitution meant, and that document, reflecting nature itself, could not possibly tolerate such a result. Justice Scalia could pretend he was not a homophobe, and insist his conclusion that the government could criminalize homosexual sodomy was simply his deferring to popular will.
It is no accident that Scalia’s method of interpretation appeals so powerfully to those whose political ideology finds its greatest protection in originalism’s charade. Proponents of the idea of limited government, for example, do quite well with originalism, because government was indeed more limited back in the days before telephones, email, and cars—back in the days when it took weeks of travel to get from Texas, where Scalia died, to Washington, where he worked for decades to defeat the idea of progress. Those who rarely have anything to fear from political majorities—the wealthy, the white, the mainstream, the male—like the idea that judges lack the power to get in the majority’s way, unless, of course, the majority is taking steps to help others.
These very biases exploded like boils in Scalia’s most vitriolic moments. This past December, in a case involving a challenge to the use of race-conscious admissions at the University of Texas, Justice Scalia suggested black students might do better at a “slower track” school. Moreover, in consistently ruling against race-conscious, popularly-enacted measures, Scalia entirely ignored the historical salience of the many race-conscious remedial measures enacted by the Reconstructionist era Congress. When his perception of the original meaning suited him, he was happy to embrace it; when it did not, not so much.
More than a decade ago, when the Court ruled it was unconstitutional for states to criminalize homosexual relationships, Justice Scalia wondered whether legalizing bestiality would come next. In death penalty cases, he not only routinely expressed no empathy whatsoever for the appalling circumstances under which most murderers grow up, but he has even expressed comfort with the occasional execution of an innocent man.
I teach in Texas, which is perhaps an unrepresentative sample. Nevertheless, when I ask my law students to articulate a legal or moral justification for interpreting the Constitution to mean what it meant in an era when neither blacks nor women could even vote, much less participate in the political process in other ways, I am met with silence. When my undergraduate history students read Justice Scalia’s caustic dissenting opinions in cases that identify a constitutional right of people of the same gender to have consensual sexual relations with one another, or for people of the same sex to marry, they react as though they are reading a nineteenth-century Victorian religious screed. Middle-aged privileged academicians, judges, journalists, and politicians might sincerely believe there is something deep or rigorous in Scalia’s bloviation, but from my vantage point, the next generation’s judges, lawyers, and elected officials have largely concluded there is no there there. Viewed from the very state where Justice Scalia died in his sleep, the idea that his philosophy will leave a lasting legacy seems, to use one of Scalia’s favorite words, facetious at best.
Yet, as least in the short term, Justice will indeed leave a thimble full of legacy: namely, the opinion he wrote in the 2008 decision interpreting the second amendment as protecting an individual’s right to own a gun. It is a legacy rich in irony, however, in part because with it, Justice Scalia, ostensible advocate of judicial restraint, thwarted the will of the handful of legislatures willing to enact reasonable gun measures, and even more so because the dominant view among historians of the colonial era is that Scalia got the Constitution’s original meaning wrong. When the nation’s leading originalist gets the originalist answer wrong in the one decision for which he will be remembered, it becomes impossible to deny that, more often than not, a judge’s interpretation of history is just a pretext for expressing ideology.
About the Author
David R. Dow is the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor of History at Rice. His books include Executed on a Technicality and Things I’ve Learned From Dying. Follow him on Twitter at @.