Sunstein’s False Claim that Scalia Was a Living Constitutionalist

In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.”  This claim is contrary to the received wisdom about Scalia.  But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to  the progressive transformation of the United States.

But Sunstein’s arguments are weak.  First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.

Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home.  First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding.   Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism. The ordinary meaning of arms is not limited to some particular set of firearms that people have on their mind but to a category of things defined by their function. It would be particularly bizarre to confine the coverage to firearms existing in 1789, when there is no evidence of such an intent and when the phrase appears in a document that was meant to endure for the ages.

Sunstein also notes that some historians disagree with the interpretation. But Sunstein provides no account of persuasiveness of the evidence for this disagreement, and in any event, originalism applies even in the face of disagreement. As Michael Rappaport and I also argue, the original meaning is constituted by the better supported meaning, even if other meanings are plausible.

Sunstein also argues that Heller also reflects a “moral commitment that has come to be seen as defining for millions of Americans” and further that it is hard to avoid reading the Constitution in light of moral commitments. But Scalia’s career is monument to putting to one side moral and political commitments. As a policy matter, Scalia was hardly enthusiastic about the giving accused criminals more rights or permitting flag burning, but he rendered many decisions, including those that relied almost entirely on original meaning rather than precedent, which delivered these results.

Original meaning depends on empirical facts about the world, equally available to all.  In contrast, political and moral commitments are personal preferences. Thus, original meaning and politics are actually not so difficult to separate in principle.  The separation does become more difficult in practice, if one lives and works, as do most professors, almost entirely with people who share similar political commitments. In that case, it becomes harder to understand or accept laws that are premised on views that seem utterly foreign.

Such insularity may also lead to a scholar to overlook relevant articles.  For instance, Sunstein in this essay suggests that Freedman Bureau’s work on behalf of the newly freed slaves cuts in favor of the constitutionality of affirmative action, but my co-blogger Michael Rappaport has shown why that is not the case.   Sunstein also argues that the Taking Clause only applies to physical takings. But again he ignores scholarship—again by Michael Rappaport—that demonstrates that the meaning of the Takings Clause, as incorporated, may well be different because of developments in antebellum America.

I assume that Sunstein’s brief essay will be published in an issue dedicated to Justice Scalia, but it does his memory no honor.

Reader Discussion

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on April 24, 2016 at 00:50:59 am

Actually, binding stare decisis is mostly incompatible with original meaning. The Constitution declares itself to be the "supreme Law", but that is in conflict with precedent being supreme.

Kazinski in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). http://caselaw.findlaw.com/us-9th-circuit/1480431.html

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Image of Actually, binding stare decisis is incompatible with the original meaning of the Constitution, which declares itself the
Actually, binding stare decisis is incompatible with the original meaning of the Constitution, which declares itself the "Supreme Law". That is incompatible with precedent being supreme.
on April 24, 2016 at 13:19:47 pm

To whomever:

Great link - makes sense. Wonder why all too many of the Black Robes fail to understand the dangers of *precedent* - or is it because they use it as a tool to continue applying their own rather corrupted view of the Constitution.

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Image of gabe
on April 24, 2016 at 18:30:54 pm

As Mike Rappaport and I argue in article referenced in the post and at greater length in Originalism and the Good Constitution, (http://www.amazon.com/gp/product/B00ESK52DS/ref=dp-kindle-redirect?ie=UTF8&btkr=1) the better interpretation of the Supremacy Clause does not prevent the Court from following precedent. The Supremacy Clause is best seen as just telling courts to follow relevant federal rather than state law. Under this view, the Supremacy Clause would direct courts to follow the original meaning of the Constitution, but do so in the way that Courts traditionally apply the law in accordance with applicable rules of precedent. We have found no one who argued at the time of the Framing that the Supremacy Clause or anything else in the Constitution changed this well-established practice of precedent. To the contrary, many, including Alexander Hamilton in Federalist 78, contemplated the application of precedent. But I respectfully encourage you to read the very full discussion of the status of precedent in our article and book. It cannot be captured in a post.

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John O. McGinnis
on April 25, 2016 at 01:58:07 am

So Cass Sunstein is talking about "commitments" again? Here, Scalia in Heller is described by him as applying a nation's moral commitment(as opposed to trying to interpret the text), whereas in his The Second Bill of Rights book, FDR's shamefully loose talk about our "so-to-speak" adoption of the Second Bill is described by him as outlining our "constitutive commitments."

I wonder if the difference between the words "moral" and "constitutive" means anything to Sunstein, other than the fact that the second conveniently sounds "constitutional-ish."

You say constitutional provision, I say constitutive commitment. It's all the same basic consti-toodle-dee-doo stuff.

But back to this piece. Scalia is a living constitutionalist? Wow. Face it: writing that (or permitting titles/abstracts that would imply that), a statement that would get earn any undergraduate an F for that test question, and which is flatly contradicted by the Scalia speech "Constitutional Interpretation the Old Fashioned Way," not to mention twenty other writings, isn't serious. Rather, it is just a deceptive way ("I only actually said he was a Liv Con guy on SOME cases!") for Sunstein to draw attention to an article that is probably only making the dry and rather limited argument that Scalia was sometimes inconsistent in his application of originalism. This limited argument is probably wrong anyhow given John's description of it.

Once upon a time, I'd see Sunnstein's essays in The New Republic that was, and thought, "Well, this guy is big-time, very smart, a top expert!" I'd try to read them as best as I could, despite my lack of con-law education, giving him every benefit of the doubt--sure, it was seldom I'd walk away feeling all that clear about things, but I just assumed that was my fault.

Well, I was younger then, but this year I had the misfortune of teaching one of his books--the Second Bill one--, two semesters in a row. Hey, it was my own choice! The book's got good info on FDR and the liberal position on economic theory, but constitution-wise, just too much valuable class time had to be spent untangling his sophistries and deliberate conflations. It's off the syllabus now.

Here's an all too typical line from it: "the best response to those who believe that the second bill does not protect rights at all is just this: unembarrassed evasion."

What a guy. Poor unremarkable arguments hyped up to initially seem like arguments so daringly revisionist that they will turn our knowledge of the subject upside-down, and other arguments for refusing to engage in argument with your intellectual opponents.

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Carl Eric Scott
on April 25, 2016 at 11:08:08 am


No real disagreement with the reply, BUT:

When the court continues to apply "bad" law due to stare decisis, we may appear to be in a bind from which there is little likelihood of escape. and yes, the Black Robes may indeed, at times, resort to precedent to support their own misadventures in Constitutional adjudication. It IS a convenient tool. Our esteemed begowned friends have, at times, resorted to the employment (deployment, perhaps) of a *footnote* in a dissenting opinion as having the status of settled law / opinion.

So clearly, while there is no proscription against the use of precedent, there is also the opportunity for its use as a tool for the imposition (sustaining) of personal judicial preference / ideology.
How is it that modern day Commerce Clause interpretation is sustained if not by recourse to precedents established by the Roosevelt Court.

Funny, isn't it how the Proggies bemoan governance by a 200 year old document; yet never do they question near 100 year old *precedents* (favorable, of course, to their ideological perspective). One need not mention the Admin Proc Act.

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Image of gabe
on April 25, 2016 at 11:58:25 am


" arguments so daringly revisionist that they will turn our knowledge of the subject upside-down..."

But isn't that the point of it all? - in addition to demonstrating, once again, the "distinction" of his vaunted intellect.

As for *Cass*, I prefer Mama Cass - now that was someone of distinction!

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