Private: Honey (Said Justice Scalia) I Shrunk the Constitution

by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

Even in death, Justice Antonin Scalia is larger than life. Praise upon his passing has been outsized from both friends and foes of his jurisprudence—ranking him at least as “one of the country’s most influential jurists” if not “the most important justice in American history.” Time will tell whether these extraordinary assessments are prescient or premature.

What is clear today is that the theory of constitutional interpretation that Justice Scalia championed—originalism—is one justice away from extinction on the Supreme Court. The only other avowed originalist in the history of the Court is Justice Clarence Thomas. This stark fact runs counter to the false dichotomy often peddled to the public that conservative jurists are faithful to the Constitution because they stick to its original or “dead” meaning (to quote Justice Scalia), while liberal jurists play fast and loose with constitutional text in favor of an updated or “living” meaning (again, Justice Scalia) that matches their own contemporary values.

In fact, the most cutting critic of originalism on the current Court is also one of its most conservative members, Justice Samuel Alito. For example, at oral argument in a case assessing the constitutionality of a ban on the sale of violent video games to minors, Justice Alito mocked Justice Scalia’s questioning about the original meaning of the First Amendment and its application to the case by boiling down his inquiries thus: “Well I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

And in a Fourth Amendment case involving surreptitious GPS tracking of a car over the course of a month, Justice Alito poked fun at Justice Scalia’s originalist methodology. He refused to join Justice Scalia’s opinion for the Court even though he agreed with the result, for rather than applying modern Fourth Amendment principles to “a 21st-century surveillance technique,” the Court “[i]ronically . . . has chosen to decide this case based on 18th-century tort law.” What is more, Justice Alito noted, “The Court suggests that something like this might have occurred in 1791” with a constable hiding in a coach, “but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”

The absurdities served up by Justice Alito expose one serious flaw with Justice Scalia’s originalist enterprise—the dead sometimes have nothing to say, or at least nothing specific, much less decisive, about the problems facing the living in a vastly different world centuries later. And the attempt to divine the original meaning of a centuries-old document—often by combing through a historical record that is incomplete at best, inconsistent at worse, and generally inconclusive—risks the very subjectivity, selectivity, and bias in interpretation that originalism claims to avoid. Recall the violent video games case: Justice Thomas dissented from Justice Scalia’s majority opinion striking down the ban, criticizing it as contrary to “the original public understanding of the First Amendment.” Apparently James Madison did—and did not—enjoy video games.

More fundamentally, as another former colleague (and fellow Republican appointee) Justice John Paul Stevens has argued, “Justice Scalia’s method invites not only bad history, but also bad constitutional law.” That is because, ironically, Justice Scalia’s originalism is at war with the text of the Constitution and its great amendments. To be sure, some text—such as that specifying the age of eligibility to be President (“thirty five”), the fraction of a person that slaves counted for in calculating congressional representation (“three fifths”), and the chamber that approves presidential appointments (“the Senate”) —is as precise and fixed as a pinned butterfly. These provisions do not need originalism to make their meaning clear and their application invariable even centuries later.

By contrast, other constitutional provisions adopt general principles such as reasonableness (the Fourth Amendment right against “unreasonable searches and seizures”) and broad ideals such as freedom (the First Amendment protection of “the freedom of speech”) and equality (the Fourteenth Amendment guarantee of “equal protection of the laws”). These provisions enshrine some of the great liberties that successive generations of Americans have invoked—including those Americans who were not originally counted as such. By design, the breadth and generality of these provisions wisely entrust their interpretation to subsequent generations who, in facing unforeseen futures, are given the freedom to learn from history rather than being constrained to repeat it.

Thus, in the most celebrated decision in constitutional history, Brown v. Board of Education (1954), the Court rightly rejected the original post Civil-War understanding of the Fourteenth Amendment embodied in Plessy v. Ferguson (1896) and entrenched in Jim Crow laws that “separate” was “equal.” It took generations for our nation to come to understand and embrace a constitutional principle of equality that was greater than the historical practices of those who adopted it.

Yet Justice Scalia’s originalism would shrink the sweep of these vital provisions. It would reduce them to shorthand for a historical snapshot of understandings that are ever receding and never preserved with the care and completeness that one should expect if the Framers had intended future generations to be originalists. Indeed, if the Framers had any such intention, then their failure to systematically preserve the original public meaning of the many debatable provisions in the document would amount to constitutional malpractice.

But Justice Scalia’s originalism is not just at war with the constitutional text. It is also at war with the constitutional design. The Constitution provides for majority rule but also protects fundamental rights. When one clashes with the other, the victor under our system is clear. To quote Justice Robert Jackson, “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” So by limiting the recognition and scope of fundamental rights to generally much narrower 18th-century understandings, Justice Scalia’s originalism has the acknowledged effect—and in his view the great virtue—of “intrud[ing] much less upon the democratic process.” That is, fundamental rights protected by the Constitution may trump laws enacted by the democratic process, but through the narrow historical lens of originalism, they are fewer in number and mostly smaller in size.

While less rights leaves more room for democratic rule, this resizing is vice rather than virtue where the Constitution itself calls for a more expansive conception of rights. Revisit, for example, the post-Civil War guarantee of “equal protection” at issue in Brown. It would certainly have “intrude[d] much less upon the democratic process” for the Court to have left it to voters whether to maintain a “separate but equal” society. But a century of segregation made it painfully and abundantly clear that fidelity to the constitutional principle of equality requires freeing it from its narrow historical meaning, even if doing so deprives democratic majorities of some choices in self-governance.

Consequently, as Judge Richard Posner (a fellow Reagan appointee to the federal bench) has observed in a recent op-ed criticizing what he calls Justice Scalia’s “majoritarian theocracy,” to condemn a Court decision upholding fundamental rights as anti-democratic is to condemn the constitutional design itself. Favoring democracy over fundamental rights when push comes to shove is essentially a political position rather than a constitutional one. “The logic of his position,” observed Judge Posner, “is that the Supreme Court should get out of the business of enforcing the Constitution altogether.”

And so, in his last major dissent, Justice Scalia laid bare his cards in blasting the Court’s same-sex marriage decision, which invalidated state same-sex marriage bans on “due process” and “equal protection” grounds, as a ruling that “robs the People” of “the freedom to govern themselves.” At its heart, this reproach is a rejection of a Constitution that is actually much larger than originalism was designed to acknowledge.

In reflecting on Justice Scalia’s originalism, it is fitting to close with some historical perspective. Originalism as a formal theory of constitutional interpretation arose not during the Framing era but during the Reagan Administration. It was a strategic approach tailored to claim the objective high ground (asserting fidelity to the original meaning of the Constitution) and to undo the Warren Court individual rights revolution (returning fundamental rights to their 18th-century status). Justice Scalia was appointed to the Court in large part to lead the originalist revolution there.

And lead he did, with all the might of his intellect and rhetoric. Moreover, Justice Scalia achieved no inconsiderable success in some respects. Though generally rejected by scholars and judges as an overarching theory of constitutional interpretation, originalism has highlighted the importance of history as a relevant—though not conclusive—consideration in debates over constitutional meaning. And in the political realm, it has completely won over at least one side of the ideological spectrum, as displayed by the reactions of Republican presidential candidates to Justice Scalia’s death.

But at the Supreme Court itself—the institution that Justice Scalia so long served and sought to transform—originalism’s moment seems over. The void left by the passing of its larger-than-life advocate may well be filled by the majestic principles and promise of (to give Justice Scalia the last word) “a living Constitution.”

Constitutional Interpretation, Supreme Court