Scalia and Disciplinary Originalism
There are two very different ways to think of Antonin Scalia’s preferred method of interpreting the Constitution, often called originalism—and by the way, that Wikipedia page is unusually accurate and useful, though perhaps skewed a bit towards critics of originalism.
One might think of originalism as a method, or one might think of it as a discipline. If you conceive of it in the former way, you will run into some serious problems; if you conceive of it in the latter way, it is profoundly salutary. In a recent critique of Scalia, Laurence Tribe uses the words “method” and “methods” seventeen times — he can’t conceive of originalism in any other way. But there is another way.
Originalism as a method is unmanageable for several reasons, all of which stem from the essential and unavoidable condition of Constitutional interpretation, which is to apply to legal situations today a Constitution that was written more than two centuries ago. For one thing, it often requires justices, even after thorough and detailed research, to guess (infer, intuit) what the Framers might have thought about what’s happening today. But how do you do that? In the strictest sense, the Framers imagined almost nothing that we are dealing with today, since our world is so different. So rigorous methodological originalism would make the Constitution irrelevant to the law today.
It is tempting to say that, since strict or what we might call methodological originalism removes the Constitution from current legal disputes, then must we not follow the living Constitution model? In that just-linked (and now-archaic, though still-relevant) article, Jack Balkin of Yale Law School writes, “We are all living constitutionalists now. But only some of us are willing to admit it.” But that’s true only if the “living Constitution” model is the only alternative to methodological originalism.
If the problem with methodological originalism is that it renders the Constitution effectively nugatory in current legal disputes … well, that’s the problem with the living Constitution model too. Because in practice what makes the Constitution “living” is that it says what we want it to say. Scholars like Balkin more-or-less explicitly endorse this stance: “There’s something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with.” That is, those “key civil rights decisions” produce immensely valuable and just results — a point I absolutely agree with — and therefore must be good decisions.
As I commented in an earlier post on Scalia, Balkin’s essential jurisprudential principle might be summarized thus:
If a law produces, or seems likely to produce, an outcome that right-thinking people deem socially desirable, then that law is ipso facto constitutional; by contrast, if that law produces, or seems likely to produce, an outcome that right-thinking people deem socially undesirable, then that law is ipso facto unconstitutional.
But it’s hard to see how a “living Constitution” that is alive in this way is anything more than a re-animated corpse controlled by a console in the hands of SCOTUS. Balkin has tried to square this circle, but in a way that it seems to me makes virtually no concessions to the originalist view it claims to be taking seriously. And Tribe simply grasps the nettle: “I see [Scalia], with great respect, as a worthy adversary—but an adversary all the same—of the just and inclusive society that our Constitution and laws should be interpreted to advance rather than impede.” First you decide what you think a “just and inclusive” society is, and then you interpret the Constitution so that it endorses your views. In such a scheme the Constitution, and therefore our own national history, is rendered incapable of speaking back to us — of having its own voice rather than a dim echo of our own.
I confess to much ambivalence on this score. In a very important sense it would have been far, far better for the key social and legal decisions of the Civil Rights era to have been made by legislative rather than the judicial system. But our legislators, especially on the state level, were moving very slowly or not at all. And when I think about those who in those days counseled patience, I always hear the voice of Martin Luther King, Jr.:
We have waited for more than three hundred and forty years for our God-given and constitutional rights. The nations of Asia and Africa are moving with jetlike speed toward the goal of political independence, and we still creep at horse-and-buggy pace toward the gaining of a cup of coffee at a lunch counter. I guess it is easy for those who have never felt the stinging darts of segregation to say “wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people; when you have to concoct an answer for a five-year-old son asking in agonizing pathos, “Daddy, why do white people treat colored people so mean?”; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger” and your middle name becomes “boy” (however old you are) and your last name becomes “John,” and when your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodyness” — then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over and men are no longer willing to be plunged into an abyss of injustice where they experience the bleakness of corroding despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.
A long passage, but one that can’t be reflected on too deeply or too often. The extended, throbbing sentence in the middle of that paragraph is as powerful an embodiment as I know of the pain of waiting, waiting, waiting, for a remediation of the grossest of injustices.
So I get what Balkin is saying when he notes that few of us, on the Left or on the Right, would want to undo “the key civil rights decisions” of the 20th century. But not all the decisions, not most of the decisions, made under the living-Constitution model have been as just or as commendable. Indeed, some of them have made a mockery of the Constitution and cannot possibly be defended in terms of legal reasoning, however desirable one might think the outcome.
So this is why discplinary originalism matters. Disciplinary originalism understands that methodological originalism is unworkable because it makes the Constitution useless. But it also wants to allow the Constitution to speak to us, and to force us, when we are departing in some significant way from its principles, to go back to our legislators and change the laws — and amend the Constitution itself when necessary. Disciplinary originalism keeps us honest. It forces us to know what we’re doing, and not to console ourselves with the pretense that we are somehow in the Great Tradition of the Framers when we are in fact repudiating much of what they believed. It doesn’t tell us we can’t or shouldn’t dissent from the beliefs of the Framers; it just asks us to admit it openly when we do so.
Critics of Justice Scalia often accused him of inconsistency. And insofar as he was a methodological originalist he sometimes was inconsistent. But I think the heart of his jurisprudence was disciplinary originalism, and with his death the most powerful embodiment of that vital principle was lost. I do not think we shall look upon his like again. And that means that our Supreme Court will continue to make the kinds of decisions it has been making for decades, but will have no one on its bench to remind it of what it’s really doing. Antonin Scalia was the conscience of SCOTUS, and I don’t see how it’s going to get another one.