Scalia and the Originalists (not a band)

If you don't know about Nino, then go here for background. CNB is pressed for time.

CNB saw Scalia speak a few years back. Very engaging speaker with an extremely dry wit. Certainly seemed like he'd be a fascinating dinner companion.

However, his obsession with originalism (the idea that the Constitution should be interpreted by determining exactly what the Framers meant) is strange, and something that has bugged me since law school. Scalia clearly is 100 time the brain I am, but I've never been able to figure out how he thought this was a viable idea.

Scalia's penchant for originalism (or "ancestor worship") came out again yesterday, when he said "When I interpret the American Constitution, I try to understand what it meant, what was understood by the society to mean when it was adopted, and I don’t think it changes since then."

The problem with that argument is (a) that it would seem to require that Justice Scalia possesses some sort of time machine, and (b) even with that time machine, that it presupposes Justice Scalia could somehow divine a single intent from a document that was created by a series of compromises.

Prof. Jack Rakove said it well:

We can't simply look up the most relevant statement from, say, The Federalist, and assume that Madison or Alexander Hamilton naturally captured the true meaning of the provision in question. That text, or any text, has to be set in its context, its probative value weighed against other statements (or even what we know of the privately voiced concerns of its author). Historians, then, can indeed lay an evidentiary foundation on which originalist interpretations of the Constitution can proceed.

The natural problem is that laying this historical foundation is not practical to the determination of each case before the Supreme Court. As noted by Prof. Jeff Cooper, originalism is flat-out hard.

CNB is all for reading the Constitution as written, and is all for letting the legislative branch create laws (note to lawyers: CNB knows all about the problem of "penumbras" being used to create a right of privacy out of nowhere, and CNB is unsure how to reconcile that with its strong belief in the separation of powers) . However, Chief Justice Marshall's creation of judicial review in Marbury v. Madison (1803) has provided Justice Scalia with the crux of his duties in his current job, making it a product of the same type of judicial intervention he appears to eschew by embracing originalism. Frankly, it is difficult to conjecture a scenario where a purely originalist approach did not require excessive judicial intervention under the Constitution. What it seems to boil down to is that, just as with any -ism, originalism is susceptible to manipulation.

CNB's favorite is the recently proffered fractured explanation of how Brown v. Board of Education, (it outlawed racial segregation of public schools, for those without interest in law, society, or anything resembling education), which rested upon the idea of the 14th Amendment "incorporating" the Bill of Rights to the states, was justified in a originalist view. Essentially, the argument is that evidence from the 1860s and 1870s (had the Warren Court used it) would have supported an originalist view that the authors of the 14th Amendment original intended to outlaw segregation in public schools, hotels, theaters and other public places. This was apparently the case, despite the pesky fact that (in addition to the general segregation around the country) even the Senate gallery was racially segregated in 1868 when the 14th Amendment was drafted. As can be seen, the intellectual validity of originalism seems a bit suspect.

Prof. Cooper appears to agree:

Originalism is one of those things that tends to look good on first impression: it promises to constrain judicial choices, to provide a standard beyond the judge's individual preferences against which interpretive choices can be made (and if application of that standard tends to lead to results that accord with originalists' policy preferences, well, so much the better for them). But originalism has serious problems of its own, both conceptually and in implementation--problems that, to my mind, call into question the viability of the approach as a whole.
History is not objective. Anyone who believes that it is hasn't read enough history.

Thus, CNB does not dispute that Justice Scalia is a really smart guy, and that he has a solid sense of humor. However, his reliance upon originalism continues to perplex.