How to understand Scalia’s originalism

 

Bloomberg News

Supreme Court Justice Antonin Scalia may be the most polarizing figure in all of American law. Conservatives tend to see him as an icon who is faithful to the Constitution, unfailingly clearheaded and outraged when the occasion calls for it. Liberals tend to see him as an ogre who is on the wrong side of history, unbecomingly strident and hypocritical to boot.

Recently, liberals asked a pointed question: How can Scalia have the temerity to express constitutional doubts about affirmative-action programs on a Monday and to vote to invalidate the Voting Rights Act on a Tuesday — and then piously argue on a Wednesday that the Supreme Court should defer to Congress and uphold the Defense of Marriage Act?

It’s a legitimate question, and whether or not it has a good answer, Scalia remains poorly understood by his admirers and his critics alike. Perhaps his central goal has been to promote the rule of law, which (as he contended in an important essay in 1989) is “a law of rules.” He seeks to increase predictability and to reduce the risks associated with judicial discretion. He favors general rules, not case-by-case judgments.

In his view, such rules simplify life for ordinary people and the legal system as a whole. They also reduce the danger that political preferences will end up dominating judicial decisions.

Because of his commitment to predictability and democratic self-government, Scalia insists that laws must be interpreted in accordance with their ordinary public meaning — the meaning that their words had in the nation or community that enacted them.

Of course, Scalia is aware that words can be ambiguous; in such cases, he is willing to defer to the interpretation of the executive branch (whether the president is a Democrat or a Republican). What he insists on is that the ordinary meaning governs if judges can identify it.

That commitment isn’t connected with any political ideology; it can lead to liberal results. For example, Scalia recently wrote an important voting-rights opinion (over vigorous dissents from Justices Clarence Thomas and Samuel Alito), ruling that the language of the National Voter Registration Act bans Arizona from requiring voters to provide documentary evidence of U.S. citizenship.

As an “originalist,” Scalia believes that provisions of the Constitution mean what they meant at the time that they were ratified. He thinks that originalism increases predictability and ensures the sovereignty of We the People. The meaning of constitutional provisions is a question of history, not morality.

With respect to the Defense of Marriage Act, originalism (as Scalia understands it) leads to a clear conclusion: Congress may refuse to recognize same-sex marriages. In his words, “the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”

Is this position incompatible with his conclusion that affirmative-action programs violate the Equal Protection Clause? Maybe not. In his view, the constitutional requirement of “equal protection,” understood in accordance with its original public meaning, forbids any and all forms of racial discrimination.

Chief Justice John Roberts wrote the court’s Voting Rights Act opinion, but Scalia probably believes something like this: If the 15th Amendment is to be interpreted in accordance with its original meaning, Congress’s power to enforce that amendment “by appropriate legislation” doesn’t allow lawmakers to continue to use an outdated preclearance formula that covers states on the basis of practices that were eradicated long ago.

None of these points means that Scalia is correct in his general approach or in his particular conclusions. There are formidable objections to originalism, which is hard to square with some widely accepted constitutional practices (including the prohibition on racial discrimination by the federal government and on sex discrimination in general).

Affirmative action may well be consistent with the original understanding of the 14th Amendment. It remains puzzling that Scalia has yet to discuss the historical materials, which create serious problems for his insistence on colorblindness.

By all accounts, Scalia is a wonderful colleague, but some of his opinions test the boundaries of civility. One of the most vivid writers in the court’s history, he knows how to deliver a punch. Sometimes he seems to think that people who don’t see things his way aren’t merely in error but are also foolish, unacceptably political, even lawless.

Those who disagree with Scalia are entitled to object to his votes and his tone. At the same time, they should understand that his broadest commitment is to the rule of law. They should honor that commitment, and they should respect his efforts to develop an approach to interpretation that is compatible with it.

Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Simpler: The Future of Government.”

© 2013, Bloomberg News

Read more From Our Inbox stories from the Miami Herald

  • The vibrancy of today’s American literature

    Sales at American book stores rose a measly 1 percent in 2013, according to trade accounts. It remains unclear whether that sluggishness — sales of ebooks have also tapered off — truly represents a further chipping away of the importance of books in our culture.

  • Kansas, the KKK and hate without end

    The news that a former grand dragon of the Ku Klux Klan is suspected of shooting and killing three people near Jewish community centers in Kansas seems at first glance like a disparaged past flaring briefly into the present. Americans like to imagine that the KKK belongs to a long-gone South and anti-Semitism to a distant 20th century. Sadly, this better reflects a naive faith in the nation’s history of religious tolerance than the realities experienced by many religious minorities. Although the KKK has evolved and its membership has dwindled, it remains part of an American legacy of religious intolerance.

  • Don’t let Jeb Bush’s moderation confuse you

    Jeb Bush’s recent compassionate comments on immigration show how far apart he is from the far right of the Republican Party.

Miami Herald

Join the
Discussion

The Miami Herald is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere on the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

The Miami Herald uses Facebook's commenting system. You need to log in with a Facebook account in order to comment. If you have questions about commenting with your Facebook account, click here.

Have a news tip? You can send it anonymously. Click here to send us your tip - or - consider joining the Public Insight Network and become a source for The Miami Herald and el Nuevo Herald.

Hide Comments

This affects comments on all stories.

Cancel OK

  • Marketplace

Today's Circulars

  • Quick Job Search

Enter Keyword(s) Enter City Select a State Select a Category