The Associated Press reported the other day that Supreme Court Justice Antonin Scalia called all those who don't subscribe to his "originalist" method of constitutional interpretation "idiots." Among those "idiots?" Constitutional giants like John Marshall, Louis Brandeis and William Brennan. Oh, and probably every other Supreme Court Justice in history, with the exception of Clarence Thomas and now perhaps Samuel Alito. Do we really need any other proof of who today's judicial radicals are? Earlier, the most forceful public proponent of Justice Scalia's interpretive method - which requires looking exclusively at what the ratifiers of a constitutional provision thought its terms meant at the time of adoption - was Robert Bork. Bork, you might recall, was booed and hissed off the American stage precisely because of his ardent defense of originalism.
The reason originalism will never gain popularity is that it reflects an utterly regressive vision of the law, one that stands athwart decades of legal and social progress. According to originalists, the Constitution severely limits Congress' authority to prohibit pollution, hazardous working conditions and discrimination; permits state governments to discriminate against women, ban contraception and regulate private, noncommercial sex between consenting adults; outlaws independent enforcement agencies headed by officials who can't be removed by the president, like the Securities and Exchange Commission and the National Labor Relations Board; and severely restricts the work of those and other regulatory agencies, like the Consumer Products Safety Commission, the Mine Safety and Health Administration, the Occupational Safety and Health Administration, the Federal Communications Commission. Untempered by precedent, originalism would require reversing Brown v. Board of Education, the principle of one person-one vote and landmark cases guaranteeing the right to free speech.
But the regressive implications of originalism are only one part of the story. There are practical problems as well. As even Ronald Reagan's Solicitor General Charles Fried has written, the objections to originalism are "devastating." How can anyone determine precisely what the ratifiers meant by the words "due process" and "equal protection," or which ratifiers' or Framers' thinking to follow, when members of the founding generation possessed dramatically differing views? And why should such broad, self-evidently adaptable phrases be interpreted solely according to what any ratifier thought, particularly when it appears that: (a) at least some chose those phrases precisely to accommodate changes they could not foresee and (b) many rejected the notion, necessarily embraced by originalists, that legal texts like the Constitution ought to be interpreted by reference to extrinsic historical materials? The fact that the Court's two originalists adopted polar opposite "originalist" positions on whether the president can indefinitely detain American citizens as enemy combatants on his own say-so without review by a neutral decision-maker - Justice Scalia said no, Justice Thomas (all alone) said yes - perfectly illustrates the theory's methodological failings.
These practical problems expose what can only be called a false conceit. Like his right-wing acolytes, Justice Scalia arrogantly claims that originalism is the only value-neutral method of constitutional interpretation, "preventing him from doing the things he would like to do." This is baloney. Or as Justice Brennan once said of originalism, it is "arrogance cloaked as humility." The bottom line is that originalism is itself a political choice, "based on a value judgment commanded neither by constitutional text nor history and repudiated by a long line of distinguished Justices dating back to John Marshall," as the author of Closed Chambers, Edward Lazarus, has written.
But wait, there's more. University of Chicago law professor Cass Sunstein points out repeatedly in his recent book, Radicals in Robes (which contains a full-blown, withering critique of originalism), that Justice Scalia doesn't practice what he preaches. He, Justice Thomas and many of their supporters - whom Sunstein calls constitutional "fundamentalists" - do not consistently follow originalism wherever it takes them. Indeed, when confronted with a constitutional question where originalism might lead to results that are inconsistent with the political goals of the right-wing of the Republican Party, Justice Scalia's originalist pretensions often disappear. So when deciding the constitutionality of affirmative action programs, land use regulations, campaign finance reform and restrictions on commercial speech - and let's not forget Bush v. Gore - Justice Scalia does not even bother to investigate what the ratifiers or Framers thought. Yet on each of those issues, he somehow manages to reach conclusions favored by hard-line political conservatives.
In one opinion involving the regulation of beachfront property development, Justice Scalia acknowledged that property value-depleting regulations may not have been what the Framers had in mind when drafting the Fifth Amendment's Takings Clause, but he said that judicial recognition of such "regulatory takings" was part of our "constitutional culture." It is hard to imagine what kind of vituperativeness would have flowed from Justice Scalia's pen if any other Justice had resorted to such anti-originalist "idiocy" in a different context. Which just goes to show, as Sunstein has said, that many originalists are peddling nothing more than "a political program in legal dress."
It must get tiresome for legal academics and judges to continue having to explain the injustices that originalism would produce, its methodological flaws, and the hypocrisy of many of its adherents. But maybe if Justice Scalia keeps calling legions of revered jurisprudential opponents "idiots," the media will begin to pick up on these things. And maybe then people will begin to understand the radicalism of President Bush's pledge to nominate Justices "in the mold of Scalia and Thomas."
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