Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
Over at Balkinization, Mark Graber recently had a post entitled “Justice Scalia’s Orwellian Jurisprudence,” which claimed that Scalia paraded as an advocate of judicial restraint, but was actually an activist. Graber also claims that Scalia said he was an originalist, but ignored originalist history.
While Graber’s post has some legitimate criticisms of Scalia, which I will discuss in a moment, it is sadly marred by his claim about Scalia advocating judicial restraint. I am not aware of Scalia claiming to favor judicial restraint. Despite saying that Scalia advocated such restraint, Graber does not provide any specific evidence that Scalia actually defended this position. (If anyone has such evidence, I would be genuinely interested in seeing it.) In his Matter of Interpretation, Scalia says:
Textualism should not be confused with so called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrespute. I am not a strict constructionist, and no ought to be – though better that than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.
Thus, I do not think Scalia advocates judicial restraint. And unless he has some other evidence, I believe Graber should retract his charge.
Graber’s post does have some more legitimate criticisms of Scalia. He writes:
Scalia’s denunciations of affirmative action never engaged with the substantial scholarly literature maintaining that the Republicans who framed the post-Civil War Amendments frequently enacted race-conscious programs. His aggressive attacks on regulatory takings never engaged with the scholarly debate over whether the conception of regulatory takings even existed in 1789. His support for corporate contributions in political campaigns refused to tackle antebellum legal decisions holding that states were free to restrict corporate charters in any way the people thought best for the public interest.
I agree that Scalia often did not address the historical evidence counter to his interpretations. In some cases where Scalia failed to address the history, he may have believed that he was following precedent, but in others he is clearly not, and should have addressed the counter evidence.
For what it is worth, in some of these cases, there was historical support for Scalia’s position. In one article, I have explored the original meaning of the Constitution relating to affirmative action. Even though the original meaning of the 14th Amendment is a notoriously difficult subject that I do not believe we yet fully understand, I argue that the case against the constitutionality of affirmative action under the original meaning is stronger than the case for it. In the article, I too criticize Justice Scalia (and Justice Thomas) for failing to address the history, but maintain that there was a great deal that he could have said.
I also agree that the originalist case for holding that regulatory takings are unconstitutional under the Takings Clause is questionable. Bill Treanor and John Hart make a strong for concluding that 5th Amendment Takings Clause did not forbid regulatory takings. But in another article, I argued that some regulatory takings might be covered by the incorporation of the Takings Clause against the states under the 14th Amendment. The basic argument is that the 14th Amendment incorporated the meaning of the Takings Clause as of 1868, an argument made by many others, including Akhil Amar. And by 1868, a prohibition on takings had been understood more broadly to cover some regulatory takings. While some evidence for this interpretation has been uncovered, the interpretation would be greatly strengthened if there turned out to be more evidence.
As with any great man or justice, Justice Scalia had flaws. He was not always entirely consistent. Given the early state of originalism and the fact that he was a government official, the degree to which he was consistent was impressive. It is easy to dismiss his accomplishment if we forget that the jurisprudence of many other justices is far less demanding, allowing them much more discretion to decide cases as they like. But even if Justice Scalia had some flaws, Graber’s claim that Scalia represented himself as a believer in judicial restraint is unsupported.