Feb 152016

Originalism…or the lack thereof

Most important, I’d like to address this school of constitutional interpretation that he championed of “originalism.” I’ll start by saying it is, I’m sure, a valid area of study and thought, but as practiced by Justice Scalia it was bullshit. He attempted to use a strict original interpretation when it suited his needs, but when it did not, he would tie himself to logical knots to make the original intent of the Constitution say what he wanted it to say.

No case shows that more than the Citizens United case in which Scalia issues a concurring opinion, primarily to refute Justice Stevens dissent. It wasn’t enough his position prevailed. He had to then argue further against the dissenting opinion. His claim is that the First Amendment pertains to corporations because the Constitution didn’t specifically state an exception for corporations. Stevens made the point that corporations were few and far between in the United States as the founders held no fondness for the concept. Stevens says, “only a few hundred during all of the 18th century.” OK, Scalia actually doesn’t dispute the number, but notice how he tries to change the substance of the number. Scalia writes, “There were approximately 335 charters issued to business corporations in the United States by the end of the 18th century.” So look at that, Stevens says, only a few hundred, Scalia claims that 335 are “more” than a few hundred.

Furthermore, the idea that the Constitution applies to more than just people is absurd on its face. First off, the Constitution starts with the words, “We the people…,” and nowhere does it speak of corporations or other private organizations other than the “Press”. So we know the rights covered in the Bill of Rights are there to apply to people. Again, if you’re being literal and original, there’s no hint the Constitution applied to any entity other than the elements of government it defined, and people who formed that government.

But here’s what proves he didn’t really believe what the snake oil he was selling as “originalism.” CBS’ Sunday Morning showed a clip in their report where, speaking to what appears to be a group of law school students, Scalia says this, “You think there ought to be a right to abortion, no problem! The Constitution says nothing about it. Create it the way most rights are created in a democratic society, pass a law.”

We can go back to before the Constitution to get a sense of what the founders intended from the Jefferson’s writing in the Declaration of Independence. I think most people consider Jefferson a founding father, and someone with influence on the Constitution. Jefferson wrote that famously eloquent phrase, “…that they are endowed by their creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.” I know this isn’t the Constitution, but it can inform our thinking about the original intent of the framers. Jefferson here is being clear that a certain set of rights is pre-ordained for people that can be neither taken away nor given up. They just “are.” We have them. And notice Jefferson understood it would be near impossible to try to enumerate them all, so used the phrase, “that among these are…” Making it clear he was merely listing examples, important ones to be sure, but only examples.

Now, let’s jump forward to the debate about the Constitution. It’s often forgotten that it was a document of compromises. The Bill of Rights was never intended to be a part of the original Constitution. Alexander Hamilton wanted only a Constitution, but absent the Bill of Rights, it would have likely not been adopted. Madison and others wanted certain specific rights enumerated. The object of those wanting only the original Constitution stated their fear that people reading the documents might believe that Bill of Rights was an enumeration of the only rights available to Citizens. So clearly, the original intent of the framers was never to have rights enumerated…to require people to pass laws to “create” rights as Scalia claimed in his speech. They believed rights already exist, and were fearful their actions might even serve to limit rights.

The Constitution is never the place to go look for rights. The Constitution does two things. It establishes our form of government and its system of check and balances, and sets the limits of the government’s reach into the lives of citizens. So, while I would never claim to be a Constitutional scholar, this plain understanding from a fifth-grade civics’ class means that Scalia has it exactly backwards.

One does not, as he suggests, pass laws to “create a right.” One passes laws to restrict rights, and the courts are there to review those laws to ensure that the Constitution grants the government the authority to impinge on a right. For example, there’s the oft used quote about my right to swing my arm ends where another person’s nose begins. We have agreed the government has an obligation to balance rights through just laws that protect people from harm by others…life, liberty and the pursuit of happiness. I’m probably pretty unhappy if I keep getting hit in the nose.

ScaliaOne of the most famous examples is the finding of a right to privacy (tenuous as that might be in these days). Many other rights and rulings have flowed from this finding, but it’s wrong to say a “right to privacy was found in the Constitution.” The right existed naturally…an unalienable right, the philosophical concept that a person has the right to feel secure in themselves. The finding was really a finding that the government had limited or no rights to invade or limit a person’s right to privacy.

So this one statement makes it quite clear that, for all his big academic double-speak, Scalia was not really interested in the original intent of the framers. He was interested in creating a façade of intellectualism around his rulings. His genius was not in a new form of thought around the Constitution, but in a way to package his rulings so that people thought they had a grand origin.

EDITED 2016-02-16, 8:54:46 AM Last evening I came across the following article linked from Facebook, The Incoherence of Antonin Scalia By Richard A. Posner. It is from 2012, but is an in-depth analysis of a book co-authored by Scalia. Posner clearly shows Scalia’s inconsistencies in his legal reasoning so as to arrive at his pre-determined conclusion. It’s well worth the time.

The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”

Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.


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