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
Jimmy Carter
October 28th, 2009
2:24 pm
Doggone/GA
October 28th, 2009
2:22 pm
Ouch! I just had a sharp pain strike my groin.
Jimmy Carter
October 28th, 2009
2:26 pm
Doggone/GA
October 28th, 2009
2:23 pm
????
Taxpayer
October 28th, 2009
2:31 pm
Doggone,
Poor ox. Probably wishes it was a bovine. Which reminds me, I was just testing the waters with Jimmy. I think he’s just one of the right wing nut regulars posting under a different name. Then again, those right wing nuts all look alike to me. No individuality. No distinquishing features. No. Nothing.
Doggone/GA
October 28th, 2009
2:32 pm
“No. Nothing.”
and no conversation. Like their favorite “news” channel, and their favorite talking heads – all they’ve got is “gotchas” ad nauseum
GayBlackCripple
October 28th, 2009
2:32 pm
I can’t wait for the fat ba$tard to croak.
In his favor though, he’s not as nutty as “pube on a Coke can” Thomas.
Angry Black Man
October 28th, 2009
2:33 pm
@ Sandwich
Chuck Norris is so fast, he can run around the world and punch himself in the back of the head.
They were going to release a Chuck Norris edition of Clue, but the answer always turns out to be “Chuck Norris. In The Library. With a Roundhouse Kick.”
Most tough men eat nails for breakfast. chuck Norris does all of his grocery shopping at Home Depot.
@@
I’ve shown a few colors in my time. Kinda funny how a flirtatious, beautiful female will make any male blush.
Jimmy Carter
October 28th, 2009
2:34 pm
GayBlackCripple
October 28th, 2009
2:32 pm
Isn’t the lib mantra “tolerance”?
jt
October 28th, 2009
2:36 pm
The Constitution of the Great State of Georgia is the only authority that I acknowledge. Sometimes.
The US Supreme Court is irrelevant and debased.
Jimmy Carter
October 28th, 2009
2:38 pm
Taxpayer
October 28th, 2009
2:31 pm
Doggone/GA
October 28th, 2009
2:32 pm
Awwww, how sweet. Guess the two of you will be dressing up for Halloween this year as Nancy Pelosi and Harry Reid. Sooooo cuuuuuuute.
Taxpayer
October 28th, 2009
2:38 pm
ABM,
You don’t have to worry about flirtation from @@. I think she’s more of a puma. She has a very strong dislike for the Democrat persuasion. Goes straight for the jugular. Be careful around her.
Jimmy Carter
October 28th, 2009
2:39 pm
Uh oh, taxsprayer, I used the word “Halloween”. What does your pseudo psychological self deduct from that?
Doggone/GA
October 28th, 2009
2:40 pm
“Guess the two of you will be dressing up for Halloween this year as Nancy Pelosi and Harry Reid. Sooooo cuuuuuuute”
Taxpayer…I rest my case!
Taxpayer
October 28th, 2009
2:40 pm
Jimmy, what was you last moniker. Gandalf?
Taxpayer
October 28th, 2009
2:41 pm
taxsprayer
A person that sprays taxes!
Angry Black Man
October 28th, 2009
2:43 pm
Taxpayer
I’m ok. I can handle myself. Besides, I’ve got the ABW here, so I’m not looking for anything.
GayBlackCripple
October 28th, 2009
2:46 pm
Jimmy – not sure what you’re refering to with that… I don’t tolerate illogic and specious reasoning.
If you’re asking why I want the fat trud to die, it’s becuase he’ll never have the decency to resign and I want him off the Court. Two ways to do that: resign or die. I hope for both but as I just said – the fat pig won’t quit.
Finally, you need to get it through your head that liberals are a pretty diverse bunch. We’re straight and gay, black and white and brown and pink etc, rich and poor and middle class, both for and against abortion and the death penalty, love guns, hate guns… you get the idea right? We don’t have purity tests. We don’t exclude.
We will however, call you and your nutter friends on the BS you spew.
@@
October 28th, 2009
2:49 pm
Taxpayer:
That is soooooo not true. I LUV blue dog democrats.
I can also spot a man with self-confidence. ABM is one such man. Like he said…he can handle himself — don’t need your motherin’ to get him thru.
He’s got ABW, I’ve got Semper. I’m bettin’ the four of us would make up a mutual admiration society.
Kinda slow around here so I am O-U-T
ta.
Matilda
October 28th, 2009
2:52 pm
GayBlackCripple at 2:46, nicely put.
Jay
October 28th, 2009
2:52 pm
Furthermore, Rob is arguing on the basis of original intent, which is different than originalism. Scalia expressly rejects orginal intent, which tries to read meaning into what legislators said in floor speeches or in letters to their wives.
In the Catholic University speech, for example, Scalia states that “You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist.”
He further states that he pays no attention to legislative history. “The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, which are set forth in words.”
In other words, Scalia would reject Rob’s attempted defense of his position. The fact that Congress tried and failed to pass laws overturning segregation would have no impact whatsoever on the question of constitutionality.
In fact, the question of whether the equal protection requirement made segregation unconstitutional was addressed directly by the Supreme Court in 1896 in Plessy, and by 7-1 vote the Court rejected the anti-segregation interpretation that Scalia now claims was “original” in the 14th amendment.
What changed in the text of the 14th Amendment between 1896, when Plessy was issued, and 1954, when Brown was issued?
Nothing.
Booger Sandwich
October 28th, 2009
2:54 pm
“…none of us will really be free until nerd persecution ends…”
Normal
October 28th, 2009
2:54 pm
Scalia and the (supposedly) unchanging Constitution
Who cares…Chuck Norris shaves his legs…
Angry Black Man
October 28th, 2009
2:57 pm
Jay @ 2:52
Check and Mate!!
@@
October 28th, 2009
2:58 pm
Matilda?
I want the fat trud to die
Nicely put!!?!!
Whatevah. To each his/her own.
Taxpayer
October 28th, 2009
2:58 pm
I’m sure Scalia would have done just fine if he had been one of the original supremes. In the 21st century, he’s nothing more than a contradiction.
Taxpayer
October 28th, 2009
3:00 pm
“…none of us will really be free until nerd persecution ends…”
Bring back the pocket protector.
@@
October 28th, 2009
3:04 pm
I’m curious here, jay.
Before I leave….have you ever followed any other justice’s interpretation so closely?
I’m betting you haven’t.
But still, I wonder.
Not really. It’s obvious why Scalia is the object of your “affection”. He’s a conservative justice.
Case closed.
Inspector @@ is on the road again.
Kamchak
October 28th, 2009
3:04 pm
Who cares…Chuck Norris shaves his legs…
And wears underoos.
Taxpayer
October 28th, 2009
3:08 pm
Inspector @@! The Clouseau of the local Republican chapter.
Nothing Is Free
October 28th, 2009
3:08 pm
Doggone/GA
Taxpayer
Would you guys stop whining.
Obama is a joke.
You voted for him.
We didn’t.
Live with it.
Doggone/GA
October 28th, 2009
3:10 pm
“Would you guys stop whining.
But, but…whhhhiiiiinnnngggg is just SO much fun!
Taxpayer
October 28th, 2009
3:10 pm
NIF,
I’m quite satisfied with Obama. I think it is you and the other 19 percenters that have issues.
Kamchak
October 28th, 2009
3:11 pm
Obama is a joke.
You voted for him.
We didn’t.
Live with it.
No sweat!
Nothing Is Free
October 28th, 2009
3:12 pm
GayBlackCripple
**We’re straight and gay, black and white and brown and pink etc, rich and poor and middle class, both for and against abortion and the death penalty, love guns, hate guns… you get the idea right? We don’t have purity tests. We don’t exclude.**
Hey. What about that. The exact same is true for Republicans. Except we actually tolerate the fact that all but one TV network is nothing but left wing propaganda, while you guys do everything you can to shut down people with whom you don’t agree.
You can claim to be accepting all you want but we all know that unless someone marches in goose step with your politics, you do not have the ability to accept them.
Nothing Is Free
October 28th, 2009
3:13 pm
Taxpayer
**I’m quite satisfied with Obama.**
I know.
And that’s no surprise.
Sadly.
Booger Sandwich
October 28th, 2009
3:13 pm
Chuck Norris eats Quiche.
Angry Black Man
October 28th, 2009
3:15 pm
Jay
@@ does bring up a good question about the other justices. But, this is a liberal blog so I’d expect it to have a liberal lean to it. I don’t know diddly squat about the justices, but it does concern me that their political biases whether liberal or conservative could determine their rulings on cases as opposed to the facts presented.
Taxpayer
October 28th, 2009
3:17 pm
Scalia reminds me of someone that is trying to make specifications for vacuum tubes fit into the construction of LED televisions. Then again, that is pretty much the definition of a conservative Republican. Not blue dog dems, @@. They’re fiscally conservative.
N.J.
October 28th, 2009
3:18 pm
A polling sample of 1000 is fairly decent. Polling Report rarely if every, includes the one always cited by Republicans, Rasmussen, largely because it does not meet Polling Reports minimum standards for sample size and the process by which they poll.
Angry Black Man
October 28th, 2009
3:19 pm
Chuck Norris is a conservative. If he were a liberal, he would wipe out the entire population of the world because he’d include everyone on his list of people who gets a roundhouse kick to the face.
Doggone/GA
October 28th, 2009
3:19 pm
“The exact same is true for Republicans”
And the BEST PART is: he’s TOTALLY serious!
Booger Sandwich
October 28th, 2009
3:26 pm
Chuck Norris doesnt ask the Magic 8 Ball questions it asks him questions and receives the same answer “A Roundhouse Kick to the Face”.
Booger Sandwich
October 28th, 2009
3:27 pm
The Real Santa forgot to bring presents to Chuck Norris one Xmas. Thats why there is no Santa Claus.
Nothing Is Free
October 28th, 2009
3:28 pm
Doggone/GA
**And the BEST PART is: he’s TOTALLY serious!**
No. the best part is that it is totally true. As is the FACT that liberals fight to shut down their opposition while Republicans welcome debate.
While the DNC claims to own most minorities, they don’t own everyone. Some can actually think on their own. Now yes, they will be called Uncle Toms and traitors for not sticking with the party of George Wallace, but I think we all know who owns the plantation, don’t we?
Booger Sandwich
October 28th, 2009
3:30 pm
As a kid Chuck Norris’ parents scolded him for receiving a score of 97 on a test. His parents were never heard from again.
Booger Sandwich
October 28th, 2009
3:31 pm
Chuck doesnt use elevators. He just lowers the building.
Normal
October 28th, 2009
3:31 pm
Chuck Norris wears a tutu
Normal
October 28th, 2009
3:32 pm
Republicans welcome debate.
What the hades have you been smoking?
Taxpayer
October 28th, 2009
3:33 pm
NIF! Really! Plantation. THat is just so, so, so, what’s the word I’m looking for, so, Republican. You and “Jimmy” need to get together and work on that.
Taxpayer
October 28th, 2009
3:36 pm
Chuck Norris wears a tutu
And, delivers a roundhouse to anyone that says anything about it.
Kamchak
October 28th, 2009
3:37 pm
Chuck Norris wears a tutu
Nope. Garanimals.
Taxpayer
October 28th, 2009
3:38 pm
I hope Jay was not looking for something here to help him with an article. I mean, he did actually step in and try to re-stimulate the topic after it fell into its own recession.
wyldbyllhyltnyr@gmail.com
October 28th, 2009
3:43 pm
@@
October 28th, 2009
1:58 pm
No, I’m in Atlanta for now. We still keep a brood, mostly aged own daughters of San Peppy Badger that we breed back to Skeets Peppy. We have always liked the King Ranch conformation and coouring – truly typey animals. Unfortunately, High Brow Cat changed the cutting business and now ever one wants to back to Doc Bar. Not me though.
If you’ve the time and inclination, I’d be glad to take you down to the country estate and let you see the stock, the training complex, the main barn, the brood barn and the breeding shed.
With the wonderful weather this time of year it would be a great day for a picnic in the meadow over looking the small falls.
Nothing Is Free
October 28th, 2009
3:45 pm
Taxpayer
Republicans, huh?
**http://www.huffingtonpost.com/cenk-uygur/the-democrats-plantation-_b_36598.html**
http://www.blackcommentator.com/168/168_freedom_rider_clinton_plantation.html
“At Canaan Baptist Church in Harlem she described Republican one party rule as being akin to a plantation.” Hillary Clinton
http://www.cnn.com/2006/POLITICS/01/17/clinton.plantation/
Looks like you need to talk to Hillary. She is sounding a lot like a Republican. LOL!!
Rob
October 28th, 2009
3:51 pm
Jay,
Wrong again. I am not arguing orginal intent; instead, I am arguing orginal meaning. Apparently you do not know the difference. By my previous posts, I was simply highlighting the grounds for an orginalist who believes that segregrated schools have always been unconstitutional under the 14th Amendment.
Your reference to Plessy totally misses the mark. You aren’t really arguing that the Plessy Court was right, are you? It almost sounds like you are arguing that because the Plessy Court (the same Court that held that racial segregation is constitutional) rejected Scalia’s originalist interpretation of the 14th Amendment, Scalia is wrong. That’s absurd considering the Plessy Court’s holding (which was of course overruled by Brown)!
Stop quoting other sources (which you do not understand) and start trying to think for yourself.
Game. Set. Match.
Jay
October 28th, 2009
4:03 pm
No, I’m not arguing that Plessy was right (nice try at slipping in the dagger though).
I’m arguing that if you judge Scalia by the originalist standards that he himself claims to champion, then yes, he is wrong on both Brown and Plessy.
Originalism requires that he reject Brown and endorse Plessy.
Rob
October 28th, 2009
4:27 pm
Why would originalism require that Scalia reject Brown and endorse Plessy? It seems like you are arguing that because Plessy was the first case to address the issue, Scalia must endorse the first decision, Plessy. That’s silly, as originalism has nothing to do with agreeing/disagreeing with a Court’s first decision on the issue, and has everything to do with discerning what the Legislature meant (as opposed to intended) when it passed the written law or amendment.
Pokey
October 28th, 2009
4:30 pm
Jay, You are arguing in circles now. You ORIGINALLY argued that Scalia couldn’t argue for application of the 14th Amendment to overturn legalized segregation because he rejects it’s applcation for voting rights and be consistent. They are entirely different matters. Also there is a difference between “voting rights” as you and he define them and the inconsistent treatment by the FL Supreme Court of votes that were ALREADY cast.
I know that may be too much to handle so don’t strain your brain thinking about it too long.
Your post is about as lame and strained a point as was your attempt to portray Scalia as an insincere Christian.
When is your next Palin post? I can’t wait…
dbm
October 28th, 2009
4:56 pm
The 14th amendment DID outlaw segregated schools IF they were inherently unequal. It just took a long time to realize, based on experience, that they were inherently unequal.
Len_RI
October 28th, 2009
4:57 pm
The “founder’s intentions” included slavery and no voting for women, so why on earth would I defer to them on a matter so important as the U.S. Constitution?
And, for “righty” and for the record, as far back as the founding of our fine nation the Supreme Court did in fact look to other jurisdictions (i.e. foreign) to help in applying the law. So there!
Number1ninja
October 28th, 2009
7:32 pm
The scary thing is that Scalia is basically that tool Judge Napolitano that’s always braying on Fox News. If you’re a strict consittutionalist, you should recognize that the founders pretty much agreed that it was only supposed to last about twenty years. Then whoever was still alive was supposed to revisit the constitution and revise it. But if you think they’re gonna call another CC, HA!! They only believe in the myth of America, not the reality.
Brianna Gold
October 29th, 2009
4:26 am
Well, hell must have frozen over because I am about to defend Antonin Scalia — that being said, he was misquoted by a reporter about Brown and it has since been corrected.
In addition, the comment, wrong or right, was not made the other “night” as you reported, but rather at 11:30 in the morning. I watched the event live online and I’m surprised how much I have read from reporters is wrong, whether as simple as night or morning to how he would vote in Brown.
TnGelding
October 29th, 2009
7:14 am
Impeach!
TM
October 29th, 2009
8:40 am
quick search of web we find the following:
As I suspected, Justice Scalia did not say he would have dissented in Brown v. Board of Education in 1954. The newspaper account is incorrect and took his remarks out of context. The author of the article, Howard Fischer of Capitol Media Services, owes Justice Scalia an apology.
And I apologize for quoting this incorrect article in my original post.
Here is the video of the event:
At 23:45 Justice Scalia is clearly misquoted. He says that he stands with Justice Harlan, who dissented in Plessy v. Ferguson. He argues that the original meaning of the Fourteenth Amendment prohibits racial discrimination.
Justin the bored, unemployed lawyer
October 31st, 2009
11:52 am
I’ve spent entirely too much time watching Scalia speak and this is what I’ve come away with. He is an incredibly articulate and well read individual who hides behind semantics and frequently fits the facts to his truth. He is an intellectual narcissist with a propensity for ignoring his own doctrine of originalism when it does not suit his needs. Scalia is a prototypical nerd, very proud of the fact that he went K-12 without anything less than an A. However, to me all this proves is he clearly understands how to “game” the system and respond in a manner most acceptable to the instructor, that is he answers how the questioner wants hear it. Unfortunately as a narcissist, now that he is a Justice he uses this skill to create a response based on what he wants to hear.
If you want citable proof check out Barnett: Scalia’s Infidelity.