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.

Search for WMD Called Off -- This Time Officially

Though the mention of the search has been noticeably absent from any Bush Administration discussion of Iraq for some time, the search for WMD in Iraq has now been officially called off.

"You can only search so many places for WMD," said a defense official. CNB recalls Pres. Bush joking about the WMD search in the Oval Office, which likely was of little solace to the families of the soldiers killed in Iraq (that WAS the primary reason for war).

CNB Receives Strange Link

CNB's crack investigative staff today uncovered a link to the CNB (imagine that!) , but for an extremely odd reason.

Regular CNB readers (both of you) may recall the CNB discussing the use of a stun gun on a 6-year old boy as a disciplinary tool. That same week in November, CNB discussed soon-to-be-former Atty. Gen. Ashcroft, referencing his awful song "Let the Eagle Soar."

Well, this page, reflecting the results of a search of "stun gun order soar", found those two unrelated links together on a CNB Archive site. As a result, CNB is #31 on that list.

CNB still cannot figure out the purpose of this page (none of the results appear to reference stun gun sales, as is implied). Nevertheless, CNB will gladly take the link. Any publicity is good publicity, I guess.

CNB does not, however, have a stun gun endorsement deal . . .yet.

Iraqi Elections -- A Study in Quotation

For those keeping score, the elections in Iraq are still scheduled for January 30 (or 30 January for our Eurofriends). The US ground commander (see below) said military operations were being stepped up to make all areas of four troubled Iraqi provinces (containing more than half the population of Iraq, mind you) safe enough for the vote to be held as scheduled.

"Certainly there are some pockets that will not participate in the election. We don't think it will be widespread." Iraqi PM Allawi (a candidate in the election), January 10, 2005.

"Both leaders reiterated the importance of moving forward on the date set by the Independent Iraqi Election Commission of Jan. 30." White House spokesman Scott McClellan, January 10, 2005, referring to Pres. Bush and PM Allawi.

"I can't guarantee that every person in Iraq that wants to vote, goes to a polling booth and can do that safely." Lieutenant-General Thomas Metz (senior U.S. ground commander in Iraq), January 6, 2005.

A classic from the CNB archives, showing that moving the elections was NEVER an option:

"Well, so be it. Nothing's perfect in life, so you have an election that's not quite perfect. Is it better than not having an election? You bet." Secretary of Defense Donald Rumsfeld, September 23, 2004.

For those wondering, yes, Rummy was discussing the Iraqi election.

Helpful Cartoon

Should you aspire to the lofty heights of Sean Hannity, here is a guide.

CNB favorite: present wishful thinking as objective reality. Couldn't have written it better myself.