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Scalia’s Originalism

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I’ve never really understood anyone not firmly encased in the ideological right who could profess anything like admiration for Antonin Scalia. The man barely hides the fact that his aim is policy making and tilting the nation’s law to the extreme right in service of his own ideology, even if he tries to couch it in absurd on the face claims of history, text, and intent.

Without delving into the general absurdities of the whole notion of originalism and intentionalism, I’d like to quickly bring up this great article on Scalia over at TAP highlighting the sheer, blatant, and hardly hidden ease with which Scalia shifts his “judicial philosophy” in achieving the “right” vote.

Consider first the two opinions’ methodology. In the Guantánamo case, Scalia accuses his colleagues of having “blatantly misdescribe[d]” a key precedent and of having misread history. Yet in Heller, Justice Scalia simply discarded the key 1939 precedent of United States v. Miller, which rejected the individual rights theory of the Second Amendment in Heller. Worse, reminded by Justice Stevens of the literally “hundreds of judges” who had relied on Miller‘s holding, Scalia offered only a footnote mocking their “erroneous reliance.” Judicial precedent, in short, bites only when he wants it to.

The methodological heart of Heller, however, is Justice Scalia’s much vaunted theory of originalism: the idea that the Court reads the Constitution to mean precisely what its original audience, the ratifying citizens, would have understood it to mean. This has been a cornerstone of Justice Scalia’s tenure on the Court, and since the Meese era at the Justice Department, the rallying cry for conservatives seeking to rein in what they call judicial activism.

Yet Heller shows just how flawed (and activist) “originalism” in fact is. Having announced his originalist credentials, Justice Scalia then passes quickly over the ratification period in order to spend about a quarter of his opinion (15 of 67 pages) discussing the post-1800 understandings of the Second Amendment. As an “originalist” matter this is at best putting the constitutional cart before the ratifying horse since it’s hardly clear what people in the 1890s thought tells us anything about understandings at the time of the Founding. But then, as historian Jack Rakove has pointed out, the ratification history that an originalist would look to is not as favorable as the post-1800 texts Justice Scalia relies upon.

This is one of those glaring problems with originalist, or strict constructionist if you prefer, ideas. If you think “judicial activism” is courts being too reliant to make policy by ignoring the legislative works, you would think you might at least blush at the quickness to toss that aside if and when the “activism” favors your preconceived opinions. But then, that would require shame, and that’s a trait Justice “Get over it” was certainly not cursed with.

But even beyond that, the particulars of Scalia’s dueling opinions don’t even match up. Consider:

If there is a constitutional right to carry a gun, laws criminalizing weapons possession of various kinds, such as the federal law barring those convicted of a domestic violence from possessing a firearm, will be challenged. Perhaps criminal defendants will also rely on Heller‘s celebration of the “natural” right of self-defense to argue that states must give that a more ample right of self-defense than presently available. And while Justice Scalia’s opinion, in a brief aside, tried to wave back new challenges, his reasoning was scanty and unconvincing — and, more importantly, not binding as a matter of precedent.

But the greatest practical effect of Heller will be to disable crime-ridden urban centers from dealing with the plague of guns. Already, Chicago’s gun law has been challenged; San Francisco’s is next.

I’m not a big believer in the idea that strict gun control laws will have an enormous impact on crime, but I certainly suspect there must be a marginal effect, and when you consider Scalia’s shamefully partisan and crazed dissent in Boumediene, then the issue isn’t so much effects of policy, but intellectual consistency. Of course, there’s none to be seen, because what matters is that Scalia casts the vote that will effect the right-wing policy on a particular issue, how one gets there is secondary.

I’ve probably already wasted too much effort trying to ascribe a reasoned breakdown to a man who is simply a partisan sock puppet, so with that I’ll just leave it at this; Antonin Scalia is an embarrassment not just to the Supreme Court but to the country. And in a less partisan world, any judge who responded to extremely relevant decision on the magnitude of Bush vs. Gore with a flippant, “get over it,” would be tossed from the bench and disbarred.

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