Originalist Sin

by Jeffrey Rosen | May 5, 1997

A Matter of Interpretation: Federal Courts and the Law
by Antonin Scalia
(Princeton University Press, 159 pp., $19.95)


Original Meanings: Politics and Ideas in the Making of the Constitution
by Jack N. Rakove
(Knopf, 420 pp., $35)

We are all originalists now. That is to say, most judges and legal scholars who want to remain within the boundaries of respectable constitutional discourse agree that the original meaning of the Constitution and its amendments has some degree of pertinence to the question of what the Constitution means today. Unelected judges run the risk of acting undemocratically, the argument goes, when they strike down laws passed by popularly elected legislatures; and so, to minimize the dangers of what Alexander Bickel called the "counter-majoritarian difficulty," judges should strike down laws only when they clash with principles clearly enshrined in the text of the Constitution (or its amendments) during moments of constitutional politics. By preferring the will of the people, embodied in the Constitution of 1791 or 1868, to the will of the people's venal and capricious representatives in 1997, judges can claim to be protecting popular sovereignty rather than thwarting it. Alexander Hamilton famously summarized the case for originalism in Federalist No. 78: "[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former."

There are familiar objections to originalism, and they are rehearsed by Jack N. Rakove in Original Meanings, a powerful and timely book. It seems odd for judges to claim that they are acting democratically when they thwart the will of the people in 1997 by brandishing the will of the people in 1791. Isn't it "anti-democratic," Rakove asks, to allow the dead hand of "distant (political) ancestors" to constrain the present? Rakove also points to a less familiar objection: the ratifiers of the original Constitution had little chance to clarify their understanding of the text, since the Federalist Framers, eager to avoid dissolution of the Union, forced an all-or-nothing vote, and successfully resisted anti-Federalist demands for conditional ratification or a second convention. Since the ratifiers were prevented from bargaining about particular provisions, Rakove concludes, "the only understanding we can be entirely confident that the majority of the ratifiers shared was that they were indeed deciding whether the Constitution would `form a more perfect union' than the Articles of Confederation...."

Rakove's scrupulous historical narrative ends with the eighteenth century; but originalism has not been the prevailing mode of judicial discourse for most of American constitutional history. It has come into fashion episodically, usually as a reaction against more freewheeling eras of judicial policymaking, when the courts have become politically controversial and judges are eager to take refuge in the greater objectivities of text and history. In the early nineteenth century, for example, American judges modeled themselves on English common law courts, making law incrementally from case to case, and deriving legal principles from legal precedents, rather than resorting to the original meaning of the Constitution as a matter of course. But then Thomas Jefferson and his followers claimed that John Marshall had abused his power by using the common law method to establish the Supreme Court as the final interpreter of the Constitution. (The complaint about "judicial activism" has a rather complicated provenance.)

To reduce the discretion of run-amok judges, Jefferson proposed the following canon of constitutional interpretation: "On every question of construction [we should] carry ourselves back to the time, when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying, what meaning may be squeezed out of the text, or invented against it, confirm to the probable one, in which it was passed." Replying sharply to Jefferson in 1833, Marshall's disciple Joseph Story stressed in his Commentaries on the Constitution that judges should follow "the fair meaning of the words of the text," rather than the "`probable meaning' of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own." But partly to defend the courts against anti-Federalist attacks, Story suggested that judges should restrain themselves by following fixed and objective "rules of interpretation." One of Story's nineteen rules conceded that "much... may be gathered from contemporary history, and contemporary interpretation" of the original Constitution. But Story emphasized that "nothing but the text itself was adopted by the people."

The same political and hermeneutical drama was played out 100 years later. Late nineteenth- and early twentieth-century judges, faithfully applying the common law method, struck down economic regulations passed by progressive state legislatures, including maximum hours and minimum wage laws. Progressive critics, such as Learned Hand and Felix Frankfurter, accused the Court of enforcing arbitrary principles whose connection to the text of the Constitution was hard to discern; and when Frankfurter was appointed to the Court, he and his fellow Roosevelt nominee Hugo Black had violent debates about who was the more faithful originalist.

Now the wheel has turned once more. In the 1960s and 1970s, the Court, led by Earl Warren and Warren Burger, was attacked by citizens and scholars alike for the aggressiveness of its excursions into social policy, and for a weakness for manufacturing opinions that even its friends found constitutionally unconvincing. In the 1980s, conservative judges and scholars, led most prominently by Justice Antonin Scalia, challenged the Court to restore its democratic and intellectual legitimacy by abandoning the common law constitutionalism of the Warren era and tying itself once more to the originalist mast.

Scalia joined the Court in 1986, and it is a little startling to reflect on how dramatically he and the movement that he personifies have transformed the terms of constitutional debate. As a justice, Scalia seems increasingly frustrated, and his dissents grow lonelier and more acerbic with the passage of time. But if Scalia's substantive views often fail to carry the day, his methodological victory is nearly complete: in famous cases and in obscure ones, liberal and conservative justices find themselves debating the intricacies of eighteenth-century history. (David Souter's debates with Scalia are a recapitulation of Hugo Black's debates with Frankfurter.) Indeed, Scalia's arguments about methods of interpretation have been so widely accepted that his liberal critics unwittingly find themselves adopting his terminology. When Scalia went to Princeton last year to deliver the Tanner Lecture, his commentators paid him an unexpected and grudging tribute by accusing him of betraying his own principles. Ronald Dworkin insisted, without taking note of the magnitude of the concession that he was making, that he, Dworkin, was the true originalist; and Laurence Tribe, with a similar absence of irony, claimed to be the true textualist. For having changed the terms in which constitutional issues are discussed, Scalia can take justifiable pride.

And yet the exchanges between Scalia and some of his critics have a musty feeling, like a battle between gladiators who don't realize that they are past their prime. For the debate about the interpretation of the Constitution has largely bypassed Scalia and his critics. When Scalia was nominated to the Court, he challenged his colleagues on the bench and in the academy to rethink constitutional law from the ground up, by emphasizing the centrality of text and history. In the intervening decade, a generation of younger scholars, liberal and conservative, have taken the challenge seriously and dedicated themselves to sophisticated historical and textual analysis that calls much of Scalia's own jurisprudence into question. Alas, neither Scalia nor his liberal discussants seem familiar with the most recent responses to Scalia's inconsistent application of his own methodology; and so their exchanges are sometimes too superficial to be very interesting. Ultimately, Scalia reveals himself in his new book to be not a partisan of textualism or originalism, but a partisan of traditionalism, which is a very different methodology, and looks a lot like the judge-made law that he claims to abhor. The preeminent exponent of originalism has transformed himself, in less than a decade, into the pre-eminent exponent of its antithesis.

 

It shouldn't be a surprise, perhaps, that Scalia has proved to be a fickle avatar of originalism and textualism. Shortly after he joined the Court, he cheerfully confessed that, for him, originalism was "the lesser evil," a means for reducing the Court's role in contested questions of social policy, rather than an end in itself. And in cases where originalism threatens to lead to inconvenient results, to expand the Court's role in upsetting longstanding moral traditions rather than to contract it, Scalia has abandoned originalism for a more reliable way of preserving tradition, which is traditionalism itself. In his lonely dissent in the Virginia Military Institute case, Scalia wrote: "It is my view that, whatever abstract tests we may choose to devise, they cannot supersede--and indeed ought to be crafted so as to reflect--those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts."

Scalia's allegiance to traditionalism is far deeper than his allegiance to originalism. He was born in 1936, in Trenton, New Jersey; his father, Eugene Scalia, was an immigrant from Sicily who taught Romance languages at Brooklyn College. Antonin Scalia graduated first in his class at St. Francis Xavier, a Catholic military academy in Manhattan, where he distinguished himself as an archconservative. He went on to Georgetown University and to Harvard Law School in the 1950s, where he was immersed in the Legal Process School of Felix Frankfurter and Henry Hart in its heyday; its scrupulous concern for neutrality and restraint emphasized the importance of fair judicial procedures rather than the intricacies of history.

Before joining the Court, Scalia had no professional expertise as a legal historian. His academic speciality was administrative law; and he made his reputation as an advocate of broad executive power, first as Gerald Ford's assistant attorney general in charge of the Office of Legal Counsel, and then as a professor at the Universities of Virginia and Chicago. On the Court, Scalia has distinguished himself more by his sparkling and vigorous prose than by a consistent devotion to one interpretive methodology or another. He has a fine polemical gift, and can puncture the pretensions of his colleagues with a sentence or a phrase. ("The Court has mistaken a Kulturkampf for a fit of spite," he wrote in Romer v. Evans, the gay rights case.) He is also surprisingly good at physical description: his dissent in Planned Parenthood v. Casey, the abortion case, ended with a vivid account of a portrait of Chief Justice Roger Taney, hanging in the Harvard Law School library:

He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair.... There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts....

Scalia has not provided a sustained account of his methodology since a series of short speeches he gave in the late 1980s. And so the Tanner Lecture seemed like an auspicious platform. Subjecting himself to scholarly scrutiny, Scalia promised to give his considered reflections about the virtues of originalism after ten years on the Court. Alas, the lecture reveals that his methodological thinking has become cruder and more simplistic with age, and that he misled scholars by promising that he viewed originalism as a means of restraining his own policy preferences. For the Tanner Lecture confirms the suspicion that, in case after case, Scalia chooses among mutually inconsistent interpretive principles--textualism, originalism, traditionalism--in order to reach results that he finds politically congenial. In this regard, he is in distinguished company. Rakove demonstrates that James Madison, too, chose cynically among different interpretive theories throughout his political career, moving from originalism to textualism, and from Framers' intent to ratifiers' intent, for reasons of "partisan advantage." But Justice Scalia is no President Madison. Abandoning the pretense of judicial neutrality, Scalia has accepted a commission as a commander in the aforementioned Kulturkampf, and his loyal foot soldiers are now heeding his call.

As a literary performance, Scalia's lecture shows him in uncharacteristically good temper. His interpretive claims are modest; his responses to his commentators--Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, Gordon Wood--are, by and large, measured and effective; and he writes like a dream. (The sarcasm of his recent opinions is manfully restrained.) Scalia's project is to defend the methodology that he claims to follow in statutory and constitutional interpretation--he calls it, at different times, textualism and originalism--against an alternative methodology that he calls "common law lawmaking."

Scalia begins by criticizing the idea that judicial interpretation should be guided by the intentions of the people who draft legal texts, rather than by the language of the texts themselves. The notion that citizens should be bound by the unexpressed intentions of legislators is inconsistent, he says, with "the famous American ideal ... a government of laws, not of men." Scalia plausibly justifies his textualism by tying it to a theory of democracy. "It is simply incompatible with democratic government," he writes, "to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated." Under the guise of rooting out unexpressed intentions, he worries, judges will be free to enact their own policy agendas, "construing law to mean not what it said but what it meant, or rather what a wise and intelligent person should have meant." He concludes that self-government cannot be reconciled with the proposition that "laws mean whatever they ought to mean, and that unselected judges decide what that is."

So he claims to be a textualist. But he also claims to be an originalist. What matters to Scalia is not what the words of the Constitution mean to us today, but what they would have meant to the people who ratified them. "The Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective meaning, but rather that between original meaning (whether derived from Framers' intent or not) and current meaning." Scalia's defense of the relevance of original meaning is so widely accepted that he and Dworkin end up agreeing with each other, except that Dworkin criticizes Scalia for looking at the wrong set of original meanings, for focusing on what the lawgivers intended to do rather than what they intended to say.

Scalia responds by accepting Dworkin's distinction between what Dworkin calls "semantic" originalism, which insists that legal texts should be read to say what the lawgivers intended to say, and "expectations" originalism, which holds that texts should be understood to achieve the concrete consequences or effects that the lawgivers expected them to achieve. "It is indeed the former rather than the latter that I would follow," Scalia says, insisting that he is centrally concerned with what the text of the Constitution would reasonably have been understood to mean when it was ratified, rather than what it was intended to mean when it was drafted.

Scalia questions whether the common law method, on which most law students are weaned, is an appropriate model in constitutional cases. By asking "What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?," Scalia argues, common law judges abrogate to themselves the ultimate power to make law, and thus threaten the democratic structure. By focusing instead on the original meaning of the constitutional text, and applying it to current circumstances, he argues, judges maintain their democratic legitimacy by enforcing principles ratified by the people themselves.

There is much to be said for Scalia's criticisms of the anti-democratic quality of common law constitutionalism, and for his defense of textualism and originalism. Textualism, of course, is not fundamentalism, or a belief in the ahistorical character of the secular scripture that we call the Constitution. It requires an understanding of context; and, to the extent that Scalia invites us to mine the original context of the Constitution to reveal the meaning of the text, he is suggesting nothing more controversial than that there are significant connections between text and history.

The problem is that it is not always easy to be a textualist and an originalist at the same time. Many textual provisions of the original Constitution and the Bill of Rights mean something very different to us than they did to the Americans of the nineteenth century; and if interpreted in light of their original meaning, as Scalia says they should be, they point judges toward precisely the kind of amorphous, policy-soaked, common law constitutionalism that he wants to avoid. In the 1868 edition of Constitutional Limitations, for example, Thomas Cooley, one of the most famous treatise writers of the nineteenth century, returns again and again to what he calls the "general principle of constitutional law": that Congress and the states can only regulate economic liberties in the public interest, and that special or privately oriented laws are unconstitutional.

Cooley finds at least a half dozen separate textual grounds for this "general principle," ranging from Article I, Section 10, which denies to the states the power to pass any law "impairing the obligation of contracts," to the Fifth Amendment, which says that private property shall not "be taken for public use without just compensation." Asking judges to decide which laws are and are not in the "public interest," however, is an inquiry that we usually associate with the common law method, not with constitutional interpretation. As Scalia reminds us, common law judges, deciding private disputes about torts and contracts, are encouraged to make good law, to fashion principles of sensible social policy that will serve the public interest. To the degree that Cooley is accurately reflecting the very abstract original meaning of a series of far less abstract constitutional texts, he shows the unavoidable tension between textualism and originalism.

Originalism, in other words, sometimes leads inexorably to the common law constitutionalism that Scalia wants to avoid. By encouraging judges to decide cases in the "public interest," Scalia objects, common law constitutionalism allows judges to substitute their own conception of the public interest for that of the citizens of the United States. But Scalia neglects the inconvenient fact that the citizens of the United States, at least in the nineteenth century, endorsed a host of separate constitutional provisions that, if interpreted in light of their original meaning, seem to require judges to engage in just the sort of common law policymaking that Scalia disdains.

Scalia ignores other conflicts between constitutional text and original meaning. He complains that the due process clauses of the Fifth and Fourteenth Amendments, which say that no person shall be deprived of "life, liberty, or property, without due process of law," have been erroneously interpreted "to prevent the government from taking away certain [substantive] liberties beyond those, such as freedom of speech and of religion, that are specifically named in the Constitution." The idea that the due process clause protects substantive rights, rather than simply guaranteeing fair judicial procedure, is "my favorite example of departure from the text," Scalia argues, "and certainly the departure that has enabled judges to do more freewheeling lawmaking than any other." By its explicit terms, the due process clause "guarantees only process": property, liberty and even life can be taken, but not without "a validly enacted law and a fair trial."

If Scalia were asking himself how an ordinary reader in 1997 would understand the words of the due process clause--"No person shall be ... deprived of life, liberty, or property, without due process of law"--he might indeed conclude that the clause guarantees only fair procedures rather than substantive liberties. But Scalia is not a New Critic, reading the text in a historical vacuum. He says he wants to be guided by "what the text would reasonably be understood to mean" when the Fifth Amendment was ratified in 1791 and the Fourteenth Amendment was ratified in 1868. And it is almost certain that in 1868, at least, the Fourteenth Amendment would not have been understood as Scalia understands it, as a guarantee of fair procedures alone.

Beginning in the Jacksonian era, there was a substantial overlap, in state and federal cases, between notions of due process of law and notions of equal protection of the law. The idea that laws had to serve the public interest rather than special interests, and that exclusive privileges could not be granted to one group at the expense of another, was seen as a basic requirement of due process. As a result, in the antebellum era, the state and federal due process clauses were often interpreted to strike down laws that took property or rights from one group of people (say, creditors) and transferred it to another group of people (say, debtors). Laws that benefited and affected all equally were distinguished from "class legislation" that redistributed wealth rather than serving public purposes, such as promoting health, safety, and morals.

So the text and the original meaning of the due process clause point in opposite directions; and if Scalia were seriously interested in original meanings, he might have to view the due process clause as a mandate that judges should protect certain fundamental economic rights, or privileges and immunities--such as the right to make and enforce contracts--against the redistributive impulses of populist legislatures. This, of course, is highly embarrassing to Scalia, because he has staked his judicial career not only on original understanding, but also on judicial restraint. He never tires of castigating the activist decisions at the beginning of this century, when judges invoked the amorphous words of the due process clause to strike down minimum wage and maximum hour laws. If Scalia were true to his principles, he would have to recognize that some of these activist judges were faithfully applying, rather than thwarting, the original understanding of the Fourteenth Amendment.

 

For a purported textualist, Scalia is remarkably uninterested in the actual text of the Constitution; and for a purported originalist, he is remarkably uninterested in eighteenth-century meanings. The text that is relevant to most of the cases that he discusses in his book is the Fourteenth Amendment to the Constitution, but at no point does Scalia quote the language that he is purporting to construe. Ratified in 1868, in the wake of the Civil War, the amendment begins:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The original Bill of Rights had only restricted the powers of Congress rather than those of the states. Scalia is skeptical of Supreme Court decisions from the 1920s to the 1960s, which held that the Fourteenth Amendment "incorporated" the guarantees of the Bill of Rights against the states, so that today neither Congress nor the states can pass laws abridging freedom of speech, though the First Amendment says only that "Congress shall make no law." "If the text of the Fourteenth Amendment said that `the Bill of Rights, which has hitherto been a restriction only upon the federal government, shall henceforth be a restriction also upon the states,' there might be room for an argument that the 1868 understanding of the Bill of Rights was thereby adopted, not only for the states but for the federal government as well," Scalia writes. "But it does not say that."

 

But it does say that. Writing for a unanimous Supreme Court in 1833, John Marshall observed that if the Framers of the Bill of Rights had intended to impose its restrictions on the states, they would have used language mirroring the language in Article I, Section 10 of the original Constitution, which says that "No State shall" pass ex post facto laws, bills of attainder and a host of other abuses of power. After the Civil War, John Bingham, the Ohio Republican who drafted the Fourteenth Amendment, explained that he explicitly chose the words "No State shall" to make clear the intention of Congress to force the states (as well as Congress) to respect the privileges and immunities of citizenship, which included, in his view, most of the guarantees of the original Bill of Rights.

In a decision flamboyantly inconsistent with the text and the original meaning of the Fourteenth Amendment, the Supreme Court, in the Slaughter-House Cases in 1873, eviscerated the privileges or immunities clause. By a 5-4 majority, the Court held implausibly that the clause was limited to a narrow group of rights already protected by the federal government, such as the right to petition Congress and to navigate the high seas. Justice Samuel Miller, writing for the majority, rejected Bingham's view that the clause would reasonably have been understood to include a broader group of rights, including the constitutional rights enumerated in the Bill of Rights, and the common law rights enumerated in the Civil Rights Act of 1866, such as the right to make and enforce contracts and to sue and be sued. Since Justice Miller's opinion is impossible to reconcile with Justice Scalia's methodology, it is surprising that Scalia fails to criticize it. Instead, it is left to Tribe to express the consensus opinion of liberal and conservative scholars today: "I believe that the Slaughter-House Cases... incorrectly gutted the Privileges or Immunities Clause, which led courts to rely on substantive due process as a basis for safeguarding substantive rights."

Even when interpreting relatively determinate texts, such as the First Amendment, Scalia is disappointingly superficial. In his lecture, he claims, plausibly enough, that the word "speech" in the First Amendment ("Congress shall make no law... abridging the freedom of speech") does not exhaust "the full range of communicative expression. Handwritten letters, for example, are neither speech nor press. Yet surely there is no doubt they cannot be censored," because "speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole." And he goes on to acknowledge that sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment guarantee of "the freedom of speech" apply to new technologies that did not exist when the guarantee was created--to sound trucks, or to government-licensed over-the-air-television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires--and assuredly that enterprise is not entirely cut-and-dried but requires the exercise of judgment.

Tribe seizes on this observation to suggest that Scalia's conception of the First Amendment "embodies not simply a faded snapshot of a bygone age, but instead a set of principles whose understanding may evolve over time, reflecting from the outset at least some of the aspirations of the former colonists about what sorts of rights they and their posterity would come to enjoy against their own government." It is, as they say in fencing, a hit. But Scalia, in his reply to Tribe, declines the honor of styling himself what he calls an "aspirationist." He insists that the "freedom of speech" that was not to be abridged should be viewed as a still photo of the common law of free speech in 1791, limited to the "then extant speech rights of Englishmen" during the colonial period.

Scalia's view that the First Amendment would reasonably have been understood in its own time to freeze in amber the common law rights of Englishmen is bewildering. In 1791, the First Amendment was predominantly viewed as a guarantee of federalism rather than individual rights--as a declaration that Congress had no power to displace state laws concerning speech, rather than an attempt to constitutionalize the common law rights of Englishmen. Surely the more relevant snapshot for a self-styled originalist is 1868, the year that the Fourteenth Amendment became law, in part because its supporters wanted to apply the First Amendment against the states. And, in 1868, the Reconstruction Republicans were primarily concerned not with the common law rights of colonial Englishmen but with the natural rights of abolitionists and slaves, whom Southern states had forbidden to distribute antislavery pamphlets through the mails, or to teach blacks to read and write. Moreover, if "the freedom of speech" really is a natural right, derived from God, rather than a positive right derived from the Constitution, as most Americans in the eighteenth and nineteenth centuries believed, then it seems hard to defend Scalia's ahistorical attempt to narrow the First Amendment to a petrifaction of the common law at one particular moment in time.

In any event, Scalia's reified vision of the First Amendment is impossible to reconcile with his own jurisprudence. As Tribe notes, Scalia has voted to strike down federal and state laws prohibiting flag burning, cross burning, and animal sacrifice, none of which would have been encompassed in the common law rights of Englishmen in 1791. Scalia's response is an admission of intellectual defeat: "Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew." (Scalia recognizes stare decisis, or the doctrine that precedents should not be lightly overturned, as a pragmatic "exception" to his originalist philosophy.) So Scalia coyly refuses to tell us whether or not what the Court has called the "bedrock principle" of the First Amendment--that government cannot suppress speech merely because it is offensive--can or cannot be reconciled with the original understanding of the First Amendment. He says that in the flag burning, cross burning, and animal sacrifice cases, he was merely applying the Court's "long-standing and well-accepted principles (not out of accord with the general practices of our people, whether or not they were constitutionally required as an original matter) that are effectively irreversible."

This is unsatisfying on several levels. For a start, the principle that government cannot ban speech merely because it is offensive is very much "out of accord with the general practices of our people"; it has properly uprooted a daunting variety of practices that the citizens in 1791 would have found constitutionally unobjectionable, ranging from mandatory flag salutes to cross burning. Moreover, it is not at all clear why the Supreme Court decisions holding that government cannot ban speech because it is offensive are any more "effectively irreversible" than the Supreme Court decisions holding that states cannot ban abortion in the first trimester.

Defending himself against the charge that he imports his own values into the law by his essentially arbitrary decisions about when to abide by mistaken constitutional doctrines and when to overrule them, Scalia says: "I cannot deny that stare decisis affords some opportunity for arbitrariness--though I attempt to constrain my own use of the doctrine by consistent rules." He then invokes his own dissent in the abortion case, in which he said that judges should uphold erroneous constitutional precedents only when they have become so deeply embedded in the fabric of the law that citizens have come to rely on them. But it is hardly clear that citizens have come to rely on the principle that government should not ban offensive speech more than they have come to rely on the principle that first trimester abortions cannot be regulated.

So Scalia's position is a mess.

 

Finally throwing up his hands in defeat, Scalia tries to change the subject. "Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones." His "fidelity to the methodology should be judged," Scalia says, "not by the First Amendment cases," but instead by recent cases "discovering a novel constitutional right against statewide laws denying special protection to homosexuals... a novel constitutional right against being excluded from government contracts because of party affiliation, [and] a novel constitutional prohibition of single-sex state schools."

In each of these cases, however, Scalia ignores his purported methodology, rather than demonstrating his fidelity to it. His objection to the discovery of a "novel constitutional right" in all three cases is rooted not in the text of the Constitution, or in its original meaning. It is rooted instead in tradition. Since states have, in the past, disfavored homosexuals, and maintained single-sex schools, and permitted patronage in the award of government contracts, they should continue to be able to do so today. In the end, Scalia exalts tradition over textualism and originalism. And in doing so, he reveals himself to be precisely the kind of common law constitutionalist that he detests.

Let us consider each of the three cases in turn. In Romer v. Evans, the gay rights case, Scalia accused his colleagues of employing "a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values." But Justice Anthony Kennedy's constitutional theory, though it was expressed a little obscurely, was hardly radical: even assuming that states could preserve "traditional American moral values" by banning sodomy, Kennedy's opinion suggested, it was not rational for a state to pass an anti-gay rights amendment which "makes a general announcement that gays and lesbians shall not have any particular protections from the law."

For all his fulminating about tradition, Scalia failed in this instance to examine the text or the original meaning of the constitutional guarantee of equal protection of the laws. For, if the Colorado amendment is read broadly, there is a plausible argument that it violates the central meaning of the equal protection clause, as originally understood. In 1868, when the Fourteenth Amendment was ratified, the central meaning of the equal protection clause was to guarantee equal administration of protective laws--that is, laws that protected citizens in their rights of life, liberty, and property. Slaves were denied legal protection in a host of ways. If they were violently attacked, they couldn't claim the protection of the laws prohibiting assault and murder; no slave could appear as a party before a judicial tribunal; and so on. The equal protection clause guaranteed that there could not be different punishments for crimes committed against whites and blacks and that criminal laws could not be enforced to protect white citizens but not black citizens.

It is at least arguable that the Colorado anti-gay rights amendments permitted Colorado to protect heterosexuals but not heterosexuals in the same way that the Black Codes permitted the Southern states to protect whites but not blacks. The amendment prohibited Colorado from adopting or enforcing any statute or policy "whereby homosexual, lesbian or bisexual orientation" shall be the basis of any "claim of discrimination." It would have forbidden Denver from enforcing its police department regulations declaring that officers must "be of service to anyone... in danger,... regardless of race,... gender, age or sexual orientation." Of course, a refusal by a local police department to provide gays and lesbians with police protection in response to 911 calls would have been a core violation of the historical meaning of equal protection; but the Colorado amendment would have prohibited gays and lesbians (but not blacks, or women, or old people) from challenging the discriminatory enforcement policy under local law. Moreover, forbidding the Denver police department from explicitly requiring its officers to respond to 911 calls from the victims of anti-gay violence is hardly a rational way of discouraging sodomy or, as Scalia puts it, "preserving traditional moral values." The "sheer breadth" of the amendment, as Kennedy concluded, "raises the inevitable inference that it is born of animosity toward the class that it affects."

 

"If it is rational to criminalize [homosexual] conduct," Scalia wrote in his dissent, "surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual `orientation' is an acceptable stand-in for homosexual conduct." This attempt to blur the crucial distinction between status and conduct is the most disturbing passage in Scalia's dissent. Surely there is no "tradition" in American history of singling out a class of people for second-class status, and prohibiting them from filing any "claim of discrimination" based on their status rather than their conduct. Scalia cites the Court's approval of laws banning polygamy; but even assuming that it is permissible to ban polygamy, it would hardly be permissible to pass a law stating that all Mormons, because they have an inclination or a tendency to commit polygamy, can be reduced to outlaw status and denied access to the protections of state criminal law.

Romer is a difficult case, because the Colorado amendment was so poorly drafted that it is hard to know what precisely to make of it. The most convincing argument in Scalia's dissent is that the Court ordinarily waits to be presented with a specific unconstitutional application of a dubious law, rather than striking it down across the board. Yet Scalia's strident tone, and his failure to examine the text or the history of the equal protection clause, raises the suspicion that Scalia's real allegiance is simply to preserving "traditional American moral values" at all costs, by which he means allowing democratic majorities to express disapproval of homosexuals (rather than homosexual conduct) in any way they please.

Consider the second case by which Scalia asks us to judge his fidelity to textualism and originalism. In Rutan v. Republican Party of Illinois, decided in 1990, Scalia vigorously dissented from the Court's conclusion that the First Amendment protected public employees from being hired, promoted, or transferred based on their party affiliation. Scalia's dissent, again, is based not on the text or the history of the First Amendment, but on tradition. "When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down," he declared. "Something must be wrong here, and I suggest it is the Court."

As an exercise in untranslated originalism, Scalia must be right that patronage hiring doesn't violate the First Amendment. But it is certainly arguable that government jobs, which would not have been a privilege or immunity of citizenship in 1868, should be considered a privilege or immunity of citizenship in the world after the New Deal. Indeed, Scalia has more or less committed himself to that position by his opinion in the Adarand affirmative action case in 1995, in which he suggested that government could not use racial preferences to assign government contracts. If government jobs are not a civil right, or a privilege or immunity of citizenship, then Scalia's position against affirmative action is impossible to reconcile with the original understanding of the Fourteenth Amendment, which was originally understood to prohibit racial classifications only with respect to civil rights, or privileges and immunities. And if government jobs are a civil right, then Scalia is wrong to conclude in Rutan that government can discriminate against public employees on the basis of their political affiliations. (Civil rights, in the nineteenth-century sense of the world, had to be extended to all citizens on equal terms.) Something must be wrong with Scalia's position in Adarand or Rutan, and I suggest it is Scalia.

Extreme deference to the traditional practices of democratic majorities is a plausible vision of the judicial role, assuming that Scalia were consistently deferential to democratic majorities, which he is not, as his repeated attempts to strike down affirmative action show. But traditionalism is hardly the same thing as originalism or textualism, the two methodologies to which Scalia owes his glory. There was, after all, a long-standing tradition of segregated schools in 1954; but Scalia insists that Brown v. Board of Education was correct to uproot this tradition. "I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution," he wrote in Rutan, adding that the text of the equal protection clause unambiguously forbids segregation. How he reaches this particular conclusion is unclear, since the most natural reading of the words "protection of the laws" seems to refer to protective laws, to laws that protect citizens in their life, liberty, and property. It's quite a stretch to claim that schools unambiguously fall into this category. In any event, Brown shows that, for a textualist, or an originalist, the fact that a tradition has been around for a long time is not necessarily a good reason for upholding it.

Finally, consider the third case by which Scalia asks us to judge his originalism and his textualism. Last year, in U.S. v. Virginia, he was the lone dissenter from his colleagues' decision to order the Virginia Military Institute to admit women. His dissent, once again, focused emphatically on tradition. He criticized Justice Ruth Bader Ginsburg for "count[ing] for nothing the long tradition, enduring down to the present, of men's military colleges supported by both States and the Federal Government"; and he reaffirmed his view that long-standing traditions should be preserved when they are not "expressly prohibited" by the text of the Bill of Rights.

Scalia does not explain why he believes that the text of the Constitution "expressly prohibit[s]" the tradition of racial segregation in public schools and does not "expressly prohibit" the tradition of gender segregation in public schools. The text of the Fourteenth Amendment, after all, guarantees equal protection of the laws to "all persons," not to African Americans alone. There is, of course, an argument for striking down racial segregation in schools while upholding gender segregation in schools, but it has to do not with constitutional text, or with long-standing traditions; it focuses on the elusive concepts of legislative purpose and social meaning. The real purpose and social meaning of racial segregation in public schools, Scalia might argue, was to sustain the racist premise that blacks are too inferior and degraded to be educated with whites; while the real purpose and social meaning of gender segregation in public military academies was to preserve the unique benefits of adversative military training for men.

There is room for debate about the actual purpose and objective meaning of gender segregation. Justice Ginsburg concluded that V.M.I. was motivated by "overbroad generalizations about the different talents, capacities, or preferences of males and females." V.M.I. countered that it cared nothing at all about the talents of women and was motivated instead by a sincere desire to preserve the benefits of a nineteenth-century English boarding school for men. But this is a debate that Scalia conspicuously fails to engage.

Originalist arguments help Scalia little more than textualist ones. It is clear from congressional debates in 1866 that the Fourteenth Amendment was originally understood to permit gender segregation in public schools; but it is hard to make the case that it was originally understood to prohibit racial segregation in public schools. Michael McConnell, who has attempted to construct a sophisticated originalist defense of Brown v. Board of Education, has argued that the Framers and the ratifiers of the Fourteenth Amendment did not inend to prohibit all racial classifications, but only those pertaining to civil rights, or privileges and immunities of citizenship. While the right to attend public school may not have been considered a civil right in 1866, McConnell argues, it could be plausibly considered a civil right in 1875; and so by 1954, McConnell concludes, white and black citizens had the right to attend the same public schools.

But if the right to attend public schools is considered a civil right today, this means that all citizens have to be given the right to attend the same schools on equal terms--and so gender segregation is just as impermissible as racial segregation. The privileges or immunities clause makes no distinction between women and blacks. If McConnell is right, then Ginsburg has the better originalist argument than Scalia. If McConnell is wrong, then so too, for an originalist, is Brown v. Board of Education. Either way, Scalia is left to squirm.

 

Scalia's real allegiance, in the end, is simply, and a little coarsely, to unapologetic traditionalism. He strives in his jurisprudence to conserve traditional moral values against legal and cultural change. He is exercised not by the methodology of recent Supreme Court decisions, but by the results. His objection to the cases striking down graduation prayer, and single-sex military academies, and the Colorado anti-gay rights initiative, is that they unsettle longstanding traditions that he, as a proud social conservative, wants to keep.

Scalia, in sum, is guilty of the kind of common law constitutionalism to the repudiation of which he owes his reputation. He, too, searches for what he considers the "most desirable" result case after case, and he is not consistently restrained by text or original understanding. An uncharitable critic would suspect that Scalia defers to legislatures when they reach socially conservative results that he finds philosophically congenial, and animadverts against legislative judgments (about affirmative action and voting rights, for example) that he dislikes. And a charitable critic would be hard-pressed to detect in his embrace of traditionalism any attention to the textual or historical arguments that he says are necessary to "a government of laws, not of men." It is impossible to deny, in any event, that Scalia has an uncanny ability to reach the result that happens to coincide with his own preferences in case after case. He is never tested. He is never surprised. He is a perfect stranger to doubt. His facts and his values always add up.

Some of the most interesting advances in originalist theory during the past decade have been made by Lawrence Lessig of the University of Chicago, a former Scalia clerk. Lessig argues that the challenge for judges who wish to maintain fidelity with the original meaning of the Constitution is to find readings of the text in a new context that preserve the original meaning of the text in its own context. Sometimes, Lessig argues, changes in facts or in the climate of values require judges to engage in a process of translation in order to preserve the original meaning of the Constitution over time. Scalia himself acknowledges the occasional necessity of translation. There are cases, indeed, in which a refusal to translate the usages of the past into the usages of the present would be simply delusional. There was no television when the First Amendment protected the press, but Scalia concedes that a changed reading of the First Amendment that includes television could be a faithful reading.

But that is an easy example. Scalia fails to consider the harder examples, the more complicated changes in facts and values that may require more complicated exercises in translation. When the Fourteenth Amendment was ratified, for instance, many of its Framers and its ratifiers understood it to forbid what they called "class legislation," which they defined as laws that took property or rights away from A for the purpose of giving the same property or rights to B. Since the labor market, according to the widely accepted laissez-faire values of the time, was presumed to allow free bargaining between capital and labor, each of which enjoyed equal bargaining power, class legislation that tried to redistribute economic power was seen as a form of special preference for private economic interests, rather than a public-oriented law that benefited all citizens equally.

By the late 1920s, however, the economic reality of the Depression had dislodged the old assumptions about the equal bargaining power of labor and capital; and progressives in the Blaisdell case were able to present a barrage of economic facts to argue that a Minnesota debtor relief statute was not a form of class legislation benefiting debtors and burdening creditors, but was instead, as the Court held, "a reasonable means to safeguard the economic structure upon which the good of all depends." To maintain fidelity with the original meaning of the Fourteenth Amendment, which defined "class legislation" as economic regulations that served private rather than public interests, a judge in 1997 might have to uphold minimum wage laws, even if a judge in 1868 might have had to strike them down.

So Scalia's originalism and textualism are too simplistic to be convincing. What about the alternatives offered by his critics? Dworkin persists in claiming that he is a faithful textualist and originalist, all the while viewing text and history from such Olympian heights that they appear only as an indistinct blur in his lofty gaze. He insists that he is the true originalist because he is committed, he says, to the project of "clarifying translations" (his italics) that can project the values of the ratifiers into our own time. Dworkin has not previously displayed an interest in, or a familiarity with, the enterprise of "clarifying translations." Not long ago, indeed, he was taken to task in these pages for ignoring the work of the most recent generation of constitutional scholars who are committed to working out the difficulties of translation theory.

It is a pleasant surprise, therefore, to find, in Dworkin's response to Scalia, sentences such as this: "It is a matter of complex and subtle philosophical argument what such [clarifying] translations consist in, and how they are possible--how, for example, we weave assumptions about what the speaker believes and wants, and about what it would be rational for him to believe and want, into decisions about what he meant to say." (The accompanying footnote reads, in full: "Reference to work of Quine, Grice, and Davidson." Well, obviously.) But Dworkin continues to pay only cursory attention to the text and the original context of the clauses that he purports to be translating; and the connection between his own "moral reading" of the Constitution and the words of the Constitution itself remains opaque.

To take only one example of his rush for abstraction: Dworkin criticizes Scalia for noting that when the Fourteenth Amendment was adopted it did not guarantee equal access to the ballot, but permitted distinctions in voting rights, not only on the basis of age, but also of property and sex. "Why is he so sure that the Equal Protection Clause did not always forbid discrimination on grounds of age, property, or sex (or, for that matter, sexual orientation)?," asks Dworkin.

If we look at the text they wrote, we see no distinction between racial discrimination and any other form of discrimination: the language is perfectly general, abstract, and principled. Scalia now reads into that language limitations that the language not only does not suggest but cannot bear, and he tries to justify this mistranslation by attributing understandings and expectations to statesmen that they may well have had, but that left no mark on the text they wrote.

Really? Let's "look at the text they wrote" a little more carefully. If we move from Section 1 of the Fourteenth Amendment to Section 2--and Dworkin claims that the Constitution should be read as a whole, rather than as isolated collections of unrelated clauses--we find that "the text they wrote" is not so principled or so abstract after all, and that the stark compromises embodied by the Fourteenth Amendment did indeed "leave [a] mark" on the nineteenth-century text. Section 2 says that "when the right to vote at any election... is denied to any of the male inhabitants of such State... or in any way abridged ... the basis of representation [in Congress] shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." Many Republicans considered Section 2 the most important part of the Fourteenth Amendment, because they knew it would prevent Southern states from packing Congress with white Democrats by disenfranchising black freemen. Section 2 was passionately opposed by advocates of black suffrage, who saw it as a tacit concession that the Fourteenth Amendment did not prevent states from discriminating in voting rights on the basis of race, and by advocates of women's suffrage, who saw the introduction of the word "male" into the Constitution as a term of "caste" that allowed states to continue to discriminate in voting rights on the basis of sex.

Of course, Section 2 of the Fourteenth Amendment is textual confirmation of the original meaning of the Fourteenth Amendment, widely accepted by its drafters and ratifiers, who believed that the principle enshrined in the amendment was a prohibition on discrimination in civil rights, but not political rights, on the basis of race, sex, property and so forth. So, from the perspective of semantic originalism, Scalia is right, and Dworkin is wrong, to claim that the text of the Fourteenth Amendment prohibits discrimination in voting rights on the basis of age, sex or even, for that matter, race.

It is true that a small minority of the Republican supporters of the Fourteenth Amendment viewed the compromise embodied by Section 2 as a betrayal of the principles embodied in Section 1; but as Tribe observes in another context, "when deliberate compromises appear to underlie a constitutional gap or seeming inconsistency... then fidelity to the entirety of the text and structure of course compels us to construe the document in a manner that honors those compromises rather than seeks to `correct' the perceived flaws." A conscientious translator might try to argue that when the Fourteenth Amendment is read in conjunction with subsequent amendments forbidding discrimination in suffrage on the basis of race, sex, poll taxes or age (for 18-year-olds, at least), all distinctions in suffrage should be considered constitutionally suspicious today in a way that they weren't in 1868. But this would require parsing the words and studying the history of actual constitutional amendments more carefully than Dworkin is willing to do.

Tribe's response to Scalia is more effective than Dworkin's response. Tribe is appropriately hesitant where Dworkin is overconfident, and he reads closely where Dworkin skims impatiently. Tribe claims that he, not Scalia, is the true textualist: "Like Justice Scalia, I never cease to be amazed by the arguments of judges, lawyers, or others who proceed as though legal texts were little more than interesting documentary evidence of what some lawgiver had in mind," Tribe writes, and he goes on to criticize Scalia for ignoring the constitutional text in important cases. The Eleventh Amendment, for example, directs that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or proceeded against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Despite clear textual evidence that the Eleventh Amendment was originally understood as a limit on the jurisdiction of federal courts in a narrow range of cases, Tribe notes that "a closely divided Supreme Court in Seminole Tribe v. Florida ... particularly with Justice Scalia joining the majority, quite remarkably treated the Eleventh Amendment as embodying an independent substantive limit on congressional power."

Now, Tribe's own jurisprudence is hardly a model of principled textualism. In his response to Scalia, Tribe emphasizes his own doubts about the doctrine of substantive due process, and he suggests that "other provisions in the Constitution--particularly the Privileges or Immunities Clause of the Fourteenth Amendment--might be better sources for protecting the substantive liberties of individuals." But there is little evidence of Tribe's doubts in his recent brief and argument before the Supreme Court in the right to die case, where he insisted unconvincingly that the doctrine of "substantive due process" should be expanded to protect the right of individuals to choose the time and place of their own death. (Neither Tribe's brief nor his argument offered plausible textual or historical arguments for this unlikely proposition; he relied primarily on the very precedents that he criticized in his exchange with Scalia.) Perhaps Tribe would have us excuse him for the positions that he takes as an advocate rather than a scholar; but then we would have to excuse Scalia for the positions he takes as a justice rather than a lecturer.

Even a literal-minded attention to the constitutional text, then, points in less predictable directions than Scalia and his critics would have us believe. If Scalia, Dworkin, and Tribe were seriously committed to resurrecting the original meaning of the Fourteenth Amendment, which, as its text suggests, was understood to guarantee limited absolute equality with regard to civil rights, but not political or social rights, each of them might have to embrace constitutional positions that clashed with their political views. Scalia might have to uphold voting districts constructed on the basis of race, since the Fourteenth Amendment says nothing at all about political rights; and he might have to strike down single-sex military academies, assuming he believes that Brown v. Board of Education was correctly decided, and that public education is a civil right. Scalia might have to strike down the Colorado anti-gay rights initiative, which could be construed as a core violation of the historical meaning of protection of the laws; and he might have to uphold racial set asides for federal highway contractors, unless he believes that government jobs are a privilege or immunity of citizenship, in which case he would have to abandon his view that people can be fired from government jobs, or denied promotions, on the basis of their political affiliations. And Dworkin and Tribe would have to abandon their cherished position that the due process clause of the Constitution protects a right to abortion or a right to die.

It is fashionable right now to dismiss Scalia as a bitter and marginalized figure, isolated from the mainstream of constitutional discourse. This does the justice an injustice. As this little book makes clear, Scalia deserves respect for having redefined the mainstream of constitutional discourse, and in a substantially useful way. But having abandoned the pose of judicial neutrality, Scalia has now transformed himself into a passionate advocate for traditional values rather than a dispassionate guardian of the constitutional text. It is no wonder that National Review recently nominated Scalia for president. For Scalia's labors are now unabashedly political. And the difficulty of sifting through the words and the meanings of the Constitution is now the work of more tentative scholars, whose tentativeness is a part of what qualifies them for the task.

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