Justice Scalia and the Misuse of History

By Jeffrey M. Shaman, a professor at DePaul University College of Law and author of the just-released ACS Issue Brief, “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech.”

Arrogant, defiant, and dogmatic, Supreme Court Justice Antonin Scalia is a true believer in the theory of originalism — the idea that the Constitution should be interpreted according to its original meaning when first adopted in 1787. Originalism is based on the notion that the Constitution has a fixed meaning that does not change with the passage of time. Given the bully pulpit of his high office, Justice Scalia is the nation’s most prominent advocate of this extreme and deeply conservative ideology.

The problem is that originalism is a fraud that misrepresents the nature of history by presuming that it has an objective meaning that can be discovered through study of the past. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one’s mind. Originalism, then, perpetrates a pretense of objectivity that functions as a facade for policy-making.

The illusory propensity of originalism is strikingly apparent in District of Columbia v. Heller, the 2008 decision in which the Supreme Court ruled by a slim 5-4 majority that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. Justice Scalia’s opinion for the majority in Heller adheres faithfully to his rigid originalist philosophy. Much of the opinion is devoted to an historical exposition of the Second Amendment, which was enacted in 1791, to show that it originally secured an individual right to possess firearms unconnected with service in a militia and that it proscribed laws that prohibit the possession of firearms commonly used for lawful purposes. 

It is interesting to compare Justice Scalia’s opinion in Heller to the dissenting opinion that was entered by Justice Stevens. Like Scalia, Justice Stevens engaged in an extensive examination of the historical record concerning the Second Amendment, but he concluded, in contradistinction to Justice Scalia, that the Second Amendment protects the individual right to bear arms only in connection with military service and does not limit the authority of the government to regulate the nonmilitary use or possession of firearms. Together, the Stevens and Scalia opinions are a dramatic illustration that history is vast and complex and that originalist interpretation of the Constitution is prone to manipulation to suit ideological purposes.

Heller marks the first time that Justice Scalia was able to muster a majority of the Court to sign on to an opinion emphatically taking an originalist slant. The vast majority of Supreme Court decisions interpreting the Constitution have been non-originalist in their methodology and the originalism practiced by Justice Scalia is a radical departure from the dynamic jurisprudence that has characterized constitutional interpretation since its inception. 

So it was dismaying that in 2011 Justice Scalia was again able to convince a majority of the Court to join an opinion taking an originalist approach to constitutional interpretation. This time the case was Nevada Commission on Ethics v. Carrigan, which saw the Court reaching the right result but for the wrong reasons. In Carrigan, the Court held that the First Amendment was not violated by a state ethics rule prohibiting public officials from voting on legislative matters with respect to which they have a conflict of interest. Justice Scalia’s opinion asserted that the ethics rule was constitutional because it had an historical pedigree; similar legislative recusal rules have existed since 1791 when the First Amendment was ratified and have been in place ever since.  Although this may be correct, in several other respects Justice Scalia misread the history of the First Amendment, apparently to suit his own purposes. Moreover, his reliance on the original understanding of the First Amendment as the controlling source of its meaning is an aberration from long-standing First Amendment jurisprudence. Throughout the years the Supreme Court’s interpretation of the First Amendment rarely has been determined by its original understanding. While the Court occasionally makes reference to the intent of the framers of the First Amendment, otherwise the original understanding of the First Amendment has played a minor role in its interpretation.

The Scalia opinions in both Carrigan and Heller are also notable for their propensity to twist precedent. Justice Scalia seems to be intent upon re-writing the Constitution to conform to his conservative vision of what it should be. And he lets neither precedent nor history stand in his way. He is, grievously, the most dangerous sort of judge: one full of certitude, lacking restraint, and increasingly willing to bend the law to suit his political ends.