fbpx

Was Justice Scalia an Old Originalist?

One of the standard distinctions these days is between the old originalism and new originalism.  While different people define the distinction a little bit differently, I define the old originalism as having two essential characteristics: using “original intent” to determine the original meaning of a provision and a belief that significantly constraining judges is essential to the task of originalism.

The newer originalisms – I use the term “newer originalisms” rather than the “new originalism” because new versions of originalism differ from one another – have abandoned these two characteristics.  The newer originalisms tend to focus on the original public meaning – focusing on a more textual than intentionalist approach.  And the newer originalisms no longer hold (or act like) significantly constraining judges is essential.  If the original meaning is permissive – if it is unclear, vague, or delegates power to judges – then that is the original meaning and newer originalists generally believe it should be followed.

Given these definitions, how should we classify Justice Scalia?  On the one hand, Scalia was perhaps the most important person responsible for the shift from original intent to original public meaning.  Thus, he deserves a significant place among those responsible for the newer originalisms.

On the other hand, Scalia placed a very strong value on constraining judges.  And it is a common criticism of the Justice that he often preferred clear rules to the original meaning, when that original meaning might have been unclear.  I mentioned one example in my prior post on the nondelegation doctrine.  Another example is Justice Scalia’s decision to refuse to join Justice Thomas’s decision in McDonald concluding that incorporation of the Second Amendment occurred under the Privileges or Immunities Clause rather than the Due Process Clause (which had been “fixed” through precedent).  On this score, then, Scalia stands as an old originalist.

One possible way of reconciling clear rules with the original meaning is to assume (in cases of ambiguity) that the Framers would have preferred a meaning that was clear over one that was unclear.  There is something to be said for this, but at most I believe it supports a weak inference.  And Scalia rarely, if ever, made this argument.

Thus, Scalia stands somewhere between the old originalism and the newer originalisms.  He is something of a transitional figure, who established one innovation but retained the traditional theory in other ways.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 18, 2017 at 10:16:46 am

Interesting observation.

read full comment
Image of Paul Binotto
Paul Binotto
on September 18, 2017 at 12:13:33 pm

John:

A question:

Could it be that Scalia declined to join Thomas in the P&I argument simply because of the specifics of McDonald?

read full comment
Image of gabe
gabe
on September 18, 2017 at 13:14:56 pm

Scalia thought if precedents were old and uncontroversial enough, he wouldn't mess with them. He was smart enough to know that Wickard v. Filburn didn't represent either the original intent or original meaning of the Commerce Clause, but was comfortable in leaving the precedent alone. Scalia also wasn't convinced that the 14th Amendment meant to "incorporate" the Bill of Rights, but was again content to leave the precedent alone. That probably explains why he didn't join Thomas on the P or I Clause.

read full comment
Image of Jon Rowe
Jon Rowe
on September 18, 2017 at 15:43:46 pm

Thx - makes sense.

read full comment
Image of gabe
gabe
on September 18, 2017 at 17:19:08 pm

Which raises the question: Why is L&L so obsessed with Scalia?

In my experience, Scalia was happy to be a gadfly but always choked when when it mattered.

read full comment
Image of EK
EK
on September 19, 2017 at 20:12:44 pm

Scalia only played an originalist on the rubber-chicken circuit. How an originalist scholar gets to Alden v. Maine is not comprehensible to me.

read full comment
Image of Miss Creant
Miss Creant
on September 19, 2017 at 20:16:54 pm

"Scalia was perhaps the most important person responsible for the shift from original intent to original public meaning."

He persuaded me. But when he had an opportunity to put OPM originalism into practice, he invariably put his personal interests before his jurisprudence.

There is no place in Hell too hot for Antonin Scalia.

read full comment
Image of Miss Creant
Miss Creant
on September 19, 2017 at 22:20:28 pm

No. I believe Scalia's refusal to join Thomas on the issue of whether incorporation should be through the Due Process Clause (Substantive Due Process) or the Privileges and Immunities Clause was based upon Scalia's fear of the uncertainty inherent in the P&I Clause. This is the same reason Scalia was quite content to leave the 9th Amendment a Constitutional dead letter - unwillingness to live with the uncertainty of "unenumerated rights". In this regard, Scalia was very much an "old originalist" - he did not like the idea of judges being unconstrained in deciding just which rights were entitled to constitutional protection under the rubric of "unenumerated rights."

read full comment
Image of Daniel Artz
Daniel Artz
on September 20, 2017 at 10:18:23 am

Or to be more precise, that they might have to acknowledge rights that SCALlA didn't approve of. There is no coherent originalist argument that would support the notion that the 9Am is a dead letter--but tyrant that he was, he had no qualms about strangling it with his bare hands, if necessary.

lf that was "originalism," it deserved a quick internment.

read full comment
Image of Miss Creant
Miss Creant
on September 20, 2017 at 16:24:27 pm

"...he invariably put his personal interests before his jurisprudence."

Really? - or could it be that as other commenters have suggested that he simply did not wish to attempt to counter long established precedent.

I am not saying that I agree with this "passivity" but it is an alternative explanation.

As for "...that they might have to acknowledge rights that SCALlA didn’t approve of ", surely, you must recognize that it is well nigh impossible to delineate all those "unenumerated rights". did not you make a similar claim regarding "natural rights." Where do rights begin AND , more importantly, END and *obligations* begin. Doubtless, Scalia, having witnessed the legal "finesse" of the Judiciary in countless cases, would be wise to exhibit skepticism regarding the Judiciary's capacity / willingness to *cabin* itself.

read full comment
Image of gabe
gabe
on September 23, 2017 at 16:19:37 pm

gabe: "Really? – or could it be that as other commenters have suggested that he simply did not wish to attempt to counter long established precedent.

I am not saying that I agree with this “passivity” but it is an alternative explanation."

Just not one that comports with the facts.

Compare his Employment Div. v. Smith opinion with Hobby Lobby. ln ED, he followed Reynolds-- the LDS plural marriage case, almost 150 years old--to deny a special dispensation for natives who use peyote in their religious rituals. But when the Catholics came calling, he showed favoritism to fellow Catholics. But if a Muslim asked for special treatment n re: plural marriage--HL opens that door!--we all know how he'd rule.

gabe: "surely, you must recognize that it is well nigh impossible to delineate all those “unenumerated rights”. did not you make a similar claim regarding “natural rights.”

Actually, it was James Madison. At the risk of repeating myself: In introducing his draft of our Bill of Rights to the House of Representatives, he explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

"….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

The clause Rep. Madison refers to reads as follows:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Id. at 452.

This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth Amendments. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents.

gabe: " Where do rights begin AND , more importantly, END and *obligations* begin."

Again, asked and answered. Natural rights retained = all natural rights - those natual rights ceded. Obligations = none + all obligations assumed. And again, this comports with the writings of the Framers and the authorities they relied on. l'll ask again: What can you do while alone on a desert island that is not a natural right?

lf you don't learn it in LS, you'll learn it in court: No one wants to hear your personal opinion. :)

gabe: "Doubtless, Scalia, having witnessed the legal “finesse” of the Judiciary in countless cases, would be wise to exhibit skepticism regarding the Judiciary’s capacity / willingness to *cabin* itself."

l have an aircraft carrier full of doubt, based on Madison's 9/10Am explanation above. Take abortion. There is no principled way for an originalist to oppose the outcome in Roe. l can say that because l don't have to answer to Maureen Scalia. :)

The list of cases where he put his corpulent arse on the scales of justice--and others where he would have, if only he had the votes--is a distressingly long one. He was a cancerous blight on the face of originalism.

read full comment
Image of Miss Creant
Miss Creant

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.