Justice Antonin Scalia

by Jeremy Leaming

To honor Constitution Day, Supreme Court Justice Antonin Scalia took to a podium at the American Enterprise Institute to heap plaudits on the renowned political science professor Walter Berns and knock so-called “living constitutionalists,” as advancing an inconsistent and wobbly method of constitutional interpretation.

“I can think of no more fitting way to mark this event then [with] a lecture series in honor of my good friend Walter,” Scalia said Sept. 20 at AEI’s “Walter Berns and the Constitution: A Celebration of Constitution.”

Saying Berns is likely best known for his 1987 book, Taking the Constitution Seriously, Scalia said he would take a bit of time to “discuss a particular way of taking the Constitution seriously, mainly taking the Constitution seriously as law.”

But before doing so, Scalia noted a period of time when a group of jurists allegedly failed to take the Constitution seriously.

“Since about the era of the Warren Court, American jurisprudence has been dominated by a different view of the Constitution – this view treats the document not as a legal text, with a fixed meaning, ascertainable through the ordinary tools of legal interpretation, but rather as a collection of indeterminate, aspirational provisions; a living document that serves as sort of a jumping off point for the creation of rights thought to be necessary in the current day and age,” he said.  

Scalia said a case decided during the Supreme Court’s last term, NASA v. Nelson, offered a fine example of our “legal culture” losing sight of the Constitution’s “fundamentally legal nature.” The respondents in the case, Scalia, continued argued that the federal government had violated their constitutional rights by requiring them to undergo background checks. But the respondents’ brief, according to Scalia, did not “once identify the provision of the Constitution the government was alleged to have violated.”

In “true” living constitutionalist style, Scalia charged that the respondents must have assumed the high court would view the right to informational privacy “to be a good thing, and like so many other good things, it would be read into the Constitution, never mind the text. The majority opinion, I’m happy to say, did not accept that invitation, but I’m not happy to say, it did not close the door to such claims either. My own view, that there is simply no constitutional right to informational privacy did not carry the day.”

Too often, Scalia continued, the Supreme Court has gone the other way by ignoring the Constitution’s text in an effort to reach desirable outcomes.

An example he said was Lawrence v. Texas, where the Supreme Court in a majority opinion led by Justice Anthony Kennedy, overturned a Texas law criminalizing sodomy.

“Should there be a right to consensual sodomy?” Scalia asked. “The majority of my court thought so. And so in a case called Lawrence v. Texas, such a right was read into the Fourteenth Amendment’s due process clause, which as a guarantee of procedural fairness is textually incapable of containing such a substantive right.

Originalism, a wobbly method of constitutional interpretation promoted by jurists, such as Justice Antonin Scalia, has gained a stronger foothold among conservatives, especially in academia, but continues to be derided by historians, writes Saul Cornell in a piece for Dissent Magazine.

“When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda – what historians derisively call ‘law office history,’” Cornell writes.

Cornell, history professor at Fordham University and a senior research scholar at Yale Law School, details a rocky path for originalism, from its development during the Reagan years as a tool to reign in so-called activists judges to today’s “new originalists,” who have prospered thanks to “right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics.”

The “goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives,” Cornell continues.

But despite their claim to be devoted to understanding the original meaning of the Constitution’s framers, the new originalists are actually either ignorant or dismissive of history. As Cornell points out, the framers were not monolithic in their views about the Constitution or constitutional interpretation.

Cornell writes:

John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.) For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes. Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans. Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

For more on constitutional interpretation see Keeping Faith With the Constitution, by Pamela S. Karlan, Goodwin Liu and Christopher H. Schroeder.