Justice Scalia, Fainthearted Originalism, and Nonoriginalist Precedent

Justice Scalia’s fascinating interview in New York Magazine has generated a significant amount of commentary. Probably the most important part of the interview for originalism is that Justice Scalia repudiated his view faint hearted originalist view.

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?

I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one.

I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right?

Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.

But what did Scalia mean back when we described himself as a fainthearted originalist?

In the past, there have been two ways of understanding his faint hearted originalism. The narrower way, which I tend to favor, refers to a situation where a judge does not follow the original meaning because he morally disapproves of or otherwise is unwilling to follow the original meaning of the Constitution. Let’s call this the moral disapproval view. The broader way refers to both the moral disapproval view, but adds to it the judge’s willingness to follow nonoriginalist precedents.

In Originalism: The Lesser Evil, Scalia was not entirely clear as to what he meant by faint hearted originalism, although I think the better view is that he meant the narrower view.  Scalia writes:

I can be much more brief in describing what seems to me the second most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis – so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong. (Of course recognizing stare decisis is seemingly even more incompatible with nonoriginalist theory . . . . ) But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge-even among the many who consider themselves originalists-would sustain them against an eighth amendment challenge. . . . I am confident that public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content-that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.” But to be faithful to originalist philosophy, one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence. . . . And if the faint-hearted originalist is willing simply to posit such an intent for the “cruel and unusual punishment” clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.?

As I think is clear from this discussion, Scalia believes that precedent and an unwillingness to follow the original meaning on moral grounds are both ways of avoiding the alleged excessive strength of the medicine of originalism. Still, I think Scalia restricts the term “faint hearted-originalist” for the moral disapproval situation.

Scalia’s discussion of his abandonment of faint hearted originalism supports this interpretation. Unless Scalia has suddenly abandoned the following of precedent – which is clearly not the case – his claim to have abandoned faint hearted originalism indicates that he does not believe following precedent is part of the faint hearted view.

Of course, Scalia’s discussion still suggests that he regards following nonoriginalist precedent as inconsistent with originalism – see his language of “adulterate” and “even more incompatable” quoted above. That is not my view. I believe, see here and here, that the Constitution allows for precedent and therefore following precedent is neither inconsistent with originalism nor unprincipled.