Scalia and the (supposedly) unchanging Constitution
Supreme Court Justice Antonin Scalia is probably the nation’s foremost advocate of “originalism,” or “textualism.” As he explained the idea in a speech at Catholic University in 1996, originalism among other things holds that the Constitution is immutable, that it does not change over time.
“What it meant when it was adopted it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times,” Scalia said. “If it’s inadequate, we can amend it.”
In that speech, Scalia contrasted originalism with the idea of the Constitution as a living, breathing document that must be reinterpreted to meet the demands of a changing country. Under that second, intellectually irresponsible approach, Scalia argued, “the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean. And so, all sorts of rights that clearly did not exist at the time of the Constitution (exist) today.”
Advocates of originalism or textualism portray their approach as a more honest, concrete means of interpreting the Constitution. In contrast to their opponents, they are the true keepers of the flame lit by our Founding Fathers. Originalism treats the Constitution as “that anchor, that rock, that unchanging institution that forms the American polity,” says Scalia.
Given that background, it was interesting to hear Scalia say once again the other night that had he been on the Supreme Court in 1954, he would have voted in the majority on Brown v. Board of Education, the classic court decision that abolished the concept of “separate but equal” schools and effectively ended school segregation.
Brown was decided largely on the 14th Amendment, which had been passed in 1868 in the wake of the Civil War. Among other things, that amendment guaranteed all Americans, black and white, equal protection under the law and required states to honor that protection. In the Brown case, the court decided that segregated schools violated the guarantee of equal protection under the law.
But here’s where things get sticky for Scalia and other “originalists.” The very same Congress that passed the 14th amendment by the required two-thirds vote in the House and Senate also passed a law that mandated the segregation of schools in the District of Columbia.
In 1868, in other words, the 14th Amendment very clearly did not ban school segregation. For the next 88 years, it did not ban school segregation. But by 1954, it suddenly did. Scalia, the man who claims that “what it meant when it was adopted it means today,” is somehow cool with that.
Try as Scalia might, there is no way those two positions can be honestly reconciled.
In that 1996 speech, Scalia also derides the notion that “equal protection of the law” could be applied to guarantee an equal right to vote. In a quite extensive discussion, he acknowledges that the equal protection argument “could mean that everybody has to have the vote. It could mean that…. But it just never did. That was not its understood meaning. And since that was not its meaning in 1871, it’s not its meaning today.”
Fair enough. The very constrained view of the equal protection clause expressed by Scalia in that speech was perfectly consistent with his rulings from the court.
But four years later, in a obscure little case known as Bush v. Gore, Scalia completely reversed himself. Joining Chief Justice William Rehnquist and Justice Clarence Thomas, he decided that the equal protection clause could and should be applied to guarantee an equal right to vote, and he used that reversal to put George W. Bush in the White House. The meaning of the 14th Amendment in 1871 and in 1996 suddenly changed in 2000.
Let me be clear here. The Supreme Court is the Supreme Court, they ruled as they ruled in 2000, and there has never been a question in my mind that George W. Bush was the legitimate president of the United States under the processes outlined under the Constitution. The moment the Court ruled as it did, the question of legitimacy was settled. Period.
But please, spare me the intellectual sanctimony. Scalia and others feign a purity of heart and devotion to originalism that in reality they are quite ready to throw overboard when the reward is large enough. They lack the courage of their claimed convictions.
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164 comments Add your comment
Brad Steel
October 28th, 2009
12:58 pm
Scalia’s originalism position is founded in his intellectual arrogance, inflexible over-confidence, conservative pandering and other run-of-the-mill typical douchebag earmarks.
Nail Aluminum
October 28th, 2009
1:00 pm
Brad Steel
October 28th, 2009
12:58 pm
Ditto to you, Brad.
Mrs. Godzilla
October 28th, 2009
1:00 pm
Scalia.
Putz.
Paul
October 28th, 2009
1:01 pm
I kinda liked his judicial activism when it came to the Second Amendment. I didn’t like his decision, I just liked the vision of him jumping through hoops.
Isn’t it nice, though, that general philosophies have exceptions or modifications for real-world realities?
Nail Aluminum
October 28th, 2009
1:01 pm
Godzilla.
Beast.
USinUK
October 28th, 2009
1:01 pm
Mrs. G – pithy but well said.
Taxpayer
October 28th, 2009
1:02 pm
Jay,
Are you TRYING to stir up the strict constitutionalists amongst us. You know how picky some of them can be about ‘interpreting’ the Constitution.
stands for decibels
October 28th, 2009
1:02 pm
Try as Scalia might, there is no way those two positions can be honestly reconciled.
Thing is, Fat Tony, he don’t gotta reconcile nothin’, knowhatI’msayin?
Doggone/GA
October 28th, 2009
1:02 pm
“The Supreme Court is the Supreme Court, they ruled as they ruled in 2000, and there has never been a question in my mind that George W. Bush was the legitimate president of the United States under the processes outlined under the Constitution.”
And there has ALWAYS been a question in MY mind. The Constitution gives Congress the job of deciding Presidential elections, via the votes of the electors…not the Supreme Court. The Court should have rejected that suit and put it back on Congress to decide. The result would almost certainly have been the same, but it would have been a Constitutional result.
Mrs. Godzilla
October 28th, 2009
1:03 pm
Nail Aluminum
That’d be MRS. Beast to you!
Rob
October 28th, 2009
1:04 pm
Mr. Bookman:
Nice try. Your facts are inaccurate with respect “[t]he very same Congress that passed the 14th amendment by the required two-thirds vote in the House and Senate also passed a law that mandated the segregation of schools in the District of Columbia.” The 37th Congress created segregated public schools for black children in Washington D.C. in 1862, but it was a later, different Congress (the 39th Congress), that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. Indeed, at no time after the Fourteenth Amendment did any Congress vote in favor of segregated schools in the District of Columbia.
So, next time you critize someone for “intellectual sanctimony,” at least make sure that you have your facts straight.
Nail Aluminum
October 28th, 2009
1:04 pm
And MR. Aluminum to you.
righty
October 28th, 2009
1:05 pm
Jay, we get it, you don’t like Scalia (and a host of others who actually work to follow the founder’s intentions in the constitution). At least he tries to follow OUR constitution rather than use foreign law as an admixture to the formula (Sotomayer).
Why can’t liberals just admit that the constitution is nothing more than a roadblock for their statist ideas? Oh wait, that’s right, an illusionist is only good as long as his smoke and mirrors hold up and a statist is only appealing as long as his slow march towards tyranny is never exposed for what it really is.
But it is nice to hear an admission that Bush was legitimate for his first term!
Jimmy Carter
October 28th, 2009
1:05 pm
Rob
October 28th, 2009
1:04 pm
DAMN!! Even Chuck Norris couldn’t have slammed Jay any harder. Good job.
Marsh
October 28th, 2009
1:06 pm
Scalia only sees state’s rights when it’s convenient for him. As soon as he sees something he dislikes, he is quick to find a reason the federal government should have jursidiction over that issue.
Hypocrite.
Jimmy Carter
October 28th, 2009
1:07 pm
righty
October 28th, 2009
1:05 pm
Dude, you and Rob need to form a MMA team. You’re slamming Jay “left and right”.
POPCORN VENDOR…..send me TWO bags please.
Bruno
October 28th, 2009
1:08 pm
“Let me be clear here. The Supreme Court is the Supreme Court, they ruled as they ruled in 2000, and there has never been a question in my mind that George W. Bush was the legitimate president of the United States under the processes outlined under the Constitution. The moment the Court ruled as it did, the question of legitimacy was settled. Period.”
Jay, my respect for you just went up a few notches.
“But please, spare me the intellectual sanctimony.”
I know what you mean, but it appears to be a human characteristic (on both sides of the political aisle, though you choose to highlight an example on only one side of the aisle) that we will just have to endure.
Angry Black Man
October 28th, 2009
1:09 pm
Rob
Since you’re the knowledgable one on Congress. How many members of the 39th were there from the 37th? Was there a complete removal of all incumbents?
I think what Jay was trying to say is that Congress, the body not the individual persons, voted for both. I may be wrong though. I can’t honestly say I think for Jay. Excellent points you’ve made though.
stands for decibels
October 28th, 2009
1:11 pm
Wow, took me about five seconds…
In 1862, 1864, 1866, and 1874, the Congress enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia.
Don’t worry, Rob–”Jimmy” still wants a date.
Doggone/GA
October 28th, 2009
1:11 pm
“I think what Jay was trying to say is that Congress, the body not the individual persons, voted for both”
That’s how I read it too.
Taxpayer
October 28th, 2009
1:12 pm
Isn’t it nice, though, that general philosophies have exceptions or modifications for real-world realities?
Those are so NOT the words of a devout follower of the Republican faith. Blasphemer! Screeeeechhhh!
SouthGaDawg
October 28th, 2009
1:12 pm
Jay,
The problem with opinions is that they’re like a-holes. Everyone has one. However, the problem with opinion-writers is that its a-holes who are writing the opinions.
Further, have no idea what you’re talking about here. Stick with what you do best : being a mouthpiece of the liberals. Leave the constitution to someone who actually knows what they’re talking aobut.
Bruno
October 28th, 2009
1:12 pm
Gotta run. The boss (my rabbit) is demanding attention.
Doggone/GA
October 28th, 2009
1:14 pm
“Further, have no idea what you’re talking about here.” Stick
“Leave the constitution to someone who actually knows what they’re talking aobut”
Hah!
Paul
October 28th, 2009
1:15 pm
DoggoneGA
I believe the suit resulted from a decision of the Florida Supreme Court, so it was on the court path. And that was a result of an earlier case, brought by Gore, that went to the Florida court. So even VP Gore’s lawyers thought it appropriate to follow the court path.
Captain USA
October 28th, 2009
1:15 pm
Tony Scalia is the same as any other Connie, their “bedrock principals” go what ever way the wind blows at the time. States rights are good for civil rights, voting, abortions. States rights are bad for assisted suicide, medical marijuana, prostitution. Good for things they (publicly) like, bad for things they (publicly) dislike.
One can but pray for a heart attack for Fat Tony.
AmVet
October 28th, 2009
1:16 pm
“that anchor, that rock, that unchanging institution that forms the American polity,”
Yet the “strict Constitutionalists” are generally of the political party that wants to constitutionally define marriage and additionally ban gay unions. And guarantee the right to use the word “God” in the Pledge of Allegiance and the national motto. And to specifically permit prayer at school meetings and ceremonies.
Among innumerable others…
Paul
October 28th, 2009
1:17 pm
Taxpayer
Still tryin’ to figure it out, aren’t you?
Pokey
October 28th, 2009
1:17 pm
JB, your post begs some questions…
What does the history of the 14th Amendment vis-s-vis segregation have to do with with its application voting rights?
Was the D.C. segregation law ever challenged in court prior to 1954?
Is there a legal distiction to be made between the 14th Amendment’s application to “voting rights” and its application to votes that have actually been cast?
So JB did the Florida’s Supreme Court’s ever-changing recount standards and selective application violate the Constitution??
Al Gore’s Inconvenient Truth = The Electoral College
Another well written but patently specious JB blog post…
Taxpayer
October 28th, 2009
1:18 pm
Don’t worry, Rob–”Jimmy” still wants a date.
I don’t think so. It looks more like “Jimmy” is just using a few others to try to get closer to Jay. Even the choice of moniker is actually intended to attract Jay’s attention. Everyone knows that the real Jimmy Carter is just the most morally and ethically sound president that we’ve had.
Doggone/GA
October 28th, 2009
1:19 pm
“I believe the suit resulted from a decision of the Florida Supreme Court, so it was on the court path.”
Except that election law gives elections to the state, not the nation…which is why we have such a hodge-podge of election systems.
“And that was a result of an earlier case, brought by Gore, that went to the Florida court.”
And that court had to reconcile 2 conflicting laws in the Florida statutes. They went with the most reasonable choice, which was to have a complete recount and let the actual votes decide. (I listened to the arguments live) The Supreme Court halted that recount on very questionable grounds and gave the election to Bush.
They should have allowed the Florida election results to be determined at that level, as provided in the Constitution. They should have allowed Florida to choose their electors per the results of the election, and they should have thrown ANY question back on to the Congress – as per the Constitution.
” So even VP Gore’s lawyers thought it appropriate to follow the court path”
That doesn’t make the COURT’S decision any more correct.
Jimmy Carter
October 28th, 2009
1:19 pm
stands for decibels
October 28th, 2009
1:11 pm
Nah, no need for a date. I’m happily married. However, back in the day I was rather selective. I wanted someone with intelligence and a strong work ethic. That ruled out the lib girls. Fortunately I married a wonderful woman who possessed those traits. Together, and through no govt assistance, we raised some great kids and built a strong company that I recently sold.
Perhaps you should offer your dating service for “free” to your fellow libs. To borrow a line from Joe the Biden, that would be the “patriotic” thing to do, right?
USinUK
October 28th, 2009
1:20 pm
heading out for the evening … have a good one!!
(and remember … Chuck Norris doesn’t wear a condom because there is NO protection from Chuck Norris!)
night all
Jimmy Carter
October 28th, 2009
1:21 pm
Taxpayer
October 28th, 2009
1:18 pm
Was there any “underlying racism” in your post or was I just commiting adultery in my heart again?
Jimmy Carter
October 28th, 2009
1:22 pm
Captain USA
October 28th, 2009
1:15 pm
Sounds like you need a course in “sensitivity training” the libs created.
Matilda
October 28th, 2009
1:23 pm
Great points, Captain and AmVet. The Constitution, (like the Bible, history books, and newspapers) is used by all kinds of people to rationalize what they want to do and condemn what they don’t. Facts exist independently of our thoughts about them, but don’t try telling that to someone with a document in his hand. “PROOF!” Yeah, whatever.
Taxpayer
October 28th, 2009
1:23 pm
Still tryin’ to figure it out, aren’t you?
As a matter of fact, I’ll likely always be trying to figure “it” out. After all, “it” covers so much territory. You could help settle one of those “its” though. Were you invaded?
I Report (-: You Whine )-: mmm, mmmm, mmmmm!
October 28th, 2009
1:23 pm
What the hell brought all this on?
Reality
October 28th, 2009
1:24 pm
“Activist Judges,” are they the ones who could no longer stomach Jim Crow, women being treated as property, eighteen year olds who served their country and not being able to vote, all white juries in the south during Jim Crow, all white primaries in the south, segregated schools, Separate But Inherently Unequal, poll taxes, literacy tests, women getting abortions in back alleys with coat hangers, black day at the county fair, white day at the county fair. Southerners, this is your heritage, and you love those strict constructionist judges who interpret the Constitution narrowly so,so much.
Paul
October 28th, 2009
1:24 pm
DoggoneGA
Isn’t the idea that the Court is not a political body, but the highest judicial body, and that when a political system (election) is thought to be fraudulent or following nonconstitutional principles, it’s appropriate to remove it from the political realm and send it to the judiciary for decision?
@@
October 28th, 2009
1:25 pm
Damn, jay!!! In YOUR OPINION Bush won in 2000?
How does that square with your liberal contributors here?
How does it square with Gore?
He kept showing the courts his big old BooBoo and then he cried and cried when smacked with the ruler. Movin’ on…
““““““““““““““““
Since I’m addressing bleeding-heart liberals, and although I was thinking in different terms regarding opt-out and state’s rights, I’ll go with liberal stupidity.
The unintended consequences of Reid’s “opt-out” nonsense. It can get harry.
One problem that has cropped up in policy areas where states have differential policies is how it affects migration patterns. Will unhealthy people migrate to states with a public option if their own jurisdiction opts out of the national system? States may be tempted to establish residency requirements for health care the way they did for welfare. This may make it more difficult for the uninsured to get coverage in those areas.
From a governance standpoint, the public option creates a worrisome precedent for other policy areas. If states don’t like congressional decisions on gun control, climate change or immigration, will state legislators demand an opt-out? If this were 1965 and there were a Medicare opt-out, it is conceivable we would have ended up with two-thirds of the country having Medicare, while one-third did not.
With any comprehensive reform, there always are unanticipated consequences. By using a pragmatic mechanism to solve the political problem of overcoming a Senate filibuster, opt-out proponents have created a precedent they later will regret. Opponents most likely will employ that idea in other policy areas when people are unhappy with legislative decisions. The marble cake will expand in scope throughout American federalism.
http://www.politico.com/news/stories/1009/28791_Page2.html
If it comes to pass, here’s hoping Georgia will opt out — sending desperate liberals in search of THEIR sanctuary elsewhere.
Paul
October 28th, 2009
1:26 pm
Why Taxpayer ! (1:23)
Are you coming on to me?!!?
Taxpayer
October 28th, 2009
1:26 pm
“Jimmy”,
You need to get re-wired. Where in the world did you make a connection to racism from what I posted. I think your innermost feelings may be bleeding over onto the screen.
wyldbyllhyltnyr
October 28th, 2009
1:27 pm
Let me try to explain this to you in a way you might be able to understand as it is clear that you cannot following the nuanced thinking and logic Scalia applies to the law.
My late father, may G-d rest his soul, sold hay from our country home. He did this not only the grass growth required it and to make a few pennies, but because it enabled him to visit with a lot of people in the evenings and, just klike Ol’ Wyld Byll, Daddy was a people person above all. We had performance quarterhorses, largely shown in cutting, reining, and working cow horse classes, that sported the richest bloodlines available. We had three yearling colts in the early 80’s that were the product of our good Joe Cody bred mares being covered by Mr. San Peppy – all three ultimatel sold for more than $30,000 – quite a pretty penny in that day. On evening, we had them up near the lodge to show to a potential buyer who had flown in from Europe. While waiting for the buyer, this poor old coloured boy who had just bought a his first horse for $50 came to buy four bales of hay which was all that he could afford. The coloured boy’s name was Rennie and Daddy was always gave him oversized bales because he was fond of him since Rennie was more well mannered and respectful than most of the coloured out there. Rennie, looked at the three royally bred amnd perfectly conformed stud prospects in the round round pen and told Daddy that he, Rennie who had owned a $50 horse for 10 days, knew where my Daddy, who had bred royal quarterhorses since before there was a breed, that he knew where Daddy could “all the horses he wanted that looked like that for $25 to 30.
Now, Jay, just like that old coloured boy when it came to Daddy’s stock, you don’t have the base of knowledge and impartial discernment to make a call on Scalia’s logic.
Taxpayer
October 28th, 2009
1:28 pm
Are you coming on to me?!!?
Well, that does sound like what a pod person might say.
Jimmy Carter
October 28th, 2009
1:28 pm
Taxpayer
October 28th, 2009
1:26 pm
Things just do go over your head, don’t they? The “racism” is one of Carter’s defaults on many issues. Read something other than Bookman or the Huffington Post.
Taxpayer
October 28th, 2009
1:29 pm
What is it with Republicans and their equines.
Doggone/GA
October 28th, 2009
1:30 pm
“Isn’t the idea that the Court is not a political body, but the highest judicial body, and that when a political system (election) is thought to be fraudulent or following nonconstitutional principles, it’s appropriate to remove it from the political realm and send it to the judiciary for decision?”
Not when the Court itself violates the provisions clearly stated in the constitution. There was nothing unconstitutional about Florida’s State Supreme Court decision. Isn’t it the court’s (State Supreme Court) job to reconcile inconsistencies in the laws and make determinations that resolve those inconsistencies? That’s what the Florida State Supreme Court DID.
The Consitution gives the elections to the states. The national government has no place in those elections UNTIL the electors have cast their votes. Then the Constitution gives the Congress the job of resolving any problems. ONLY IF the Congress does something unconstitutional in resolving a conflict should the national Supreme Court be involved.
They jumped in ahead of the Congress, and Congress let them do it with no complaint. That decision SHOULD HAVE triggered a Constitutional battle over proper use of Constitutional power – but it didn’t.
Paul
October 28th, 2009
1:30 pm
Taxpayer
Against my better judgment:
what’s a pod person….
Taxpayer
October 28th, 2009
1:32 pm
Jimmy,
So, your choice of moniker was just to let the rest of us know that racism is something that is always on your mind. Your default setting. Hmmmm. Interesting.