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.