The death of Supreme Court justice Antonin Scalia has prompted a not-unexpected torrent of praise from writers and bloggers — each paying tribute to Scalia’s brilliance, humor, plainspokenness and legal acumen. He was, we’re told, one of the outstanding legal minds in U.S. history.
Writers are smitten with Scalia because Scalia was a great writer. Even laymen and laywomen could read his opinions and dissents and understand them. We laugh at his jokes. We marvel at his willingness to call out his colleagues. He made Supreme Court decisions accessible and dynamic, and for that the nation’s punditocracy is grateful.
But bloviators need to point out something else — that Scalia’s theory of “originalism,” the belief that legal decisions can and should be based only on what the nation’s founders actually said, is goofy and self-contradictory argle-bargle.
There have been many paeans to Scalia’s originalism in recent days. For our purposes, George Will’s will suffice:
“A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them. These principles of judicial modesty were embraced by a generation of conservatives.”
Will’s claim accurately reflects Scalia’s great argument that a judge (or anyone else) can “discern” the original meaning of the Constitution. But such a boast isn’t judicial modesty, it’s the opposite. It’s an arrogant presumption that anyone can know what the founders were actually thinking more than 200 years ago, or how that knowledge can be applied to contemporary controversies.
This is true on the simplest terms. The First Amendment guarantees freedom “of the press.” Does that apply to broadcasters? Bloggers? They didn’t exist in 1791. We cannot know, as a matter of pure physics, if the founders believed free speech rights extended to non-paper technologies that reach beyond their wildest fantasies.
We can guess what the founders would have said — and we do. But that isn’t originalism. It’s applying contemporary reality to the founders’ words, to project what their ideas would be. And your guess is as good as mine, or Scalia’s.
(And controversial. Broadcasters must have federal licenses to exercise their free speech rights, an idea the founders would have considered preposterous. And in 2009, Scalia authored a 5-4 decision upholding the FCC’s right to penalize Fox for incidental obscenities on its airwaves, specifically avoiding the constitutionality of such speech restrictions. Perhaps he thought the founders didn’t curse.)
And just how are we to gauge the founders’ views? The Federalist Papers? Generations of high school students have studied those works but misunderstand them: The papers are propaganda, meant to convince colonists to ratify the Constitution. That doesn’t change the papers’ brilliance but colors their use as neutral defining documents. For every point they make, we can find someone else making an opposite point at the same time.
Do you doubt that? Meet the Anti-Federalist Papers.
Other documents, legal briefs and books can be equally contradictory. The founders believed in free speech but passed the Sedition Act shortly after adopting the Constitution. Were they just confused? Or were the founders just as hypocritical as contemporary politicians?
To ask the question is to answer it.
But let’s set those problems aside for a moment. Let’s take up Scalia’s most famous opinion, the Heller case on gun rights. He found a Second Amendment right for individuals to bear arms, but (he wrote):
“The Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.”
Wait, what? That conclusion may or may not be valid, but it can’t be based simply on the text of the Second Amendment, which does not make distinctions among weapons. Who knows what weapons were “typically possessed” 225 years ago? Who gets to reach the “historical understanding of the scope” of the right to have weapons? Who decides the amendment “does not protect” some guns?
Antonin Scalia, that’s who. He’s trying to thread a needle here. An originalist would argue that Americans have a right to carry muskets. A modernist would say any weapon is OK. Scalia says, uh, whatever he wants to say.
For more, read this.
An educated guess is still a guess. Four members of the Heller court guessed the other way. They lost — but that doesn’t mean Scalia was principled while they were not. It just means his guess got enough votes and theirs didn’t.
The problem is most apparent in Scalia’s concurrence on the Citizens United case. For the record, I’ve long argued the case was correctly decided: Scalia and his allies got it right. But how are we to understand this, from his opinion:
“The individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of ‘an individual American.’ It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different.”
Scalia is right — but why? Surely not because of what he thinks the founders believed. The founders had no conception of Republicans and Democrats. They detested factions. The newspapers of their day reflected the voice of the guy who printed it, and those who contributed to it. They would not have understood the idea of speech by a group or its amplification by an association of individuals, except as a mob, which they greatly feared. And they had little familiarity with the idea of a corporation as we understand it.
Scalia grafted his own ideas onto the words of the founders. That is many things — good law, legal brilliance, conservative jurisprudence, libertarian thought — but it is not “originalism.” It’s guessing.
And here’s the thing: The eight other members of the Supreme Court get to guess too. As do judges, lawyers, even laypeople across the U.S.
None of us can know precisely what the founders meant when they wrote the Constitution, not even Antonin Scalia. That fact has ensured the document’s survival for more than 200 years, his intelligence notwithstanding.