Friday, November 10, 2017

Scalia Speaks Well: But Not About Originalism

By Eric Segall

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics.

Scalia's defense of originalism comes through in several of the selected speeches in the book. The most important of these is a speech he titled "Interpreting the Constitution" which he delivered in 1994 at the Parliament House in Sydney, Australia.

Justice Scalia believed that "the provisions of the Constitution have a fixed meaning, which does not change: they mean today what they meant when they were adopted, nothing more and nothing less." Despite this rigidity, however, Scalia conceded that this "is not to say . . . that there are not new applications of old constitutional rules." As examples of  these old rules and new applications, Scalia pointed to new technologies implicating the freedom of speech such as sound trucks and television. He agreed that some times applying old rules to new facts requires "the exercise of judgment," but that is a "far cry from saying what the non-originalists say: that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids."

Scalia said in this speech, as he often did over the years, that, even though originalism is far from perfect, he only had to show that the theory was better than its competitors. And he tried to show this superiority by arguing that non-originalists didn't have a competitor--that there is "no agreement upon what criterion of constitutional meaning should replace [originalism]." According to Scalia, non-originalists "explode into a hundred different groups, or indeed as many groups as there are academics.... The fact is that no principle of interpretation other than originalism has even the shadow of a chance attracting a general adherence. As a practical matter, there is no alternative to originalism but standardless judicial constitution-making."

The examples of non-originalist decisions Scalia pointed to in this speech reflected views he expressed throughout his career. He criticized New York Times v. Sullivan for federalizing libel law; Miranda v. Arizona for the exclusionary rule; Lee v. Weisman for striking down prayers at high school graduation ceremonies, and of course Roe v. Wade for protecting a women's right to terminate her pregnancy. Scalia argued that these cases, and many others, did not reflect a study of text and history but rather evidenced a theory that allows judges to "decide what a Constitution ought to say" instead of "what a constitutional text means." But, what a Constitution "ought to say' is "not a job for lawyers but for the people."

These justifications for originalism either do not support Scalia's arguments or represent rules of interpretation that he violated consistently throughout his career.

Everyone agrees that the First Amendment's text is broad enough to reach new technologies that did not exist in 1791. But the hard questions raised by the amendment, for example whether states may impose mandatory fees on public sector unions, or what constitutes a true threat on the internet, cannot be answered through originalist analysis, and when it came to such cases, Scalia did not use an originalist approach. As Professor Michael McConnell has said, "free speech has been kind of a desert when it comes to originalism." Although Scalia proudly used some of his free speech decisions, such as his vote in the flag burning cases, to demonstrate that he did not always vote his priors, the reality is that much of Scalia's First Amendment jurisprudence was notoriously non-originalist.

In a speech titled "The Freedom of Speech," Scalia argued that Sullivan's "malice" standard for defamation of public officials is an example of improper living constitutionalism. Although libel is speech, according to Scalia, as is obscenity, neither is part of "THE" freedom of speech protected by the First Amendment because there were several categories of speech that the founding generation did not think were included in "THE" freedom of speech. Other such categories, according to Scalia, included conspiracy, bribery, and fighting words. Scalia argued that the government should be able to regulate all of these types of speech because the founding fathers did not deem them to be part of "THE" freedom of speech.

The problem with all this is that Justice Scalia throughout his career voted to strike down pure commercial speech laws without stopping to consider whether that kind of speech was part of "THE" original freedom of speech. For most of our country's history, until the 1970's, the Supreme Court did not consider commercial speech part of the original conception of speech. As Dean Vik Amar has noted, "there is little to suggest that intelligent and informed folks" in 1787 or 1868 would have applied First Amendment protections to pure commercial speech. Furthermore, Scalia couldn't make a textual argument to support his non-originalist decisions on commercial speech because he rejected Justice Black's arguments about the First Amendment on the grounds that the amendment was not intended to protect all speech, just "THE" speech that was protected as an original manner.

Justice Scalia argued that Supreme Court decisions federalizing abortion law and the death penalty were the results of Justices trying to make the Constitution the best it could be, not what it actually meant. The problem is that throughout his career Scalia also engaged in such constitutional wishful thinking, and not just with commercial speech.

Justice Scalia argued vehemently for a "color-bind" interpretation of the Fourteenth Amendment and voted to strike down every affirmative action statute he ever reviewed on that basis. No doubt Scalia felt strongly about color-blindness, but as many others have argued, neither the text nor history of the Amendment supports such an interpretation. The word "race" never appears in the Amendment, and there is ample evidence that the people in 1868 never imagined they were outlawing all racial distinctions. Furthermore, the federal government employed racial distinctions in many post-Civil War laws. For Justice Scalia, the requirement of color-blindness was simply a legal rule based on what the Constitution ought to mean not a principle derived from text, history or precedent.

I have documented elsewhere numerous other Justice Scalia decisions employing a living Constitution approach to constitutional interpretation. Examples include anti-commandeering, standing, campaign finance reform, takings, and sovereign immunity, among many others. But you don't have to believe me that Scalia was no originalist, you can take Professor Randy Barnett's word for it: "I would conclude from his ... behavior on the Court, Justice Scalia is just not an originalist." 

Separate from his votes in real cases, Scalia's theoretical defense of originalism also failed miserably. According to a speech in "Scalia Speaks," only originalism can constrain judges and "there is no alternative to originalism but standardless judicial constitution-making." All other theories, whether founded in representation-reinforcing values, or moral values, or pluralistic recognition of numerous different modalities like text, precedent, history, tradition and consequences, are all just examples of "anti-theory" because "of course 'evolutionism' is not itself a theory of constitutional construction."

Not only did Scalia dramatically understate the intellectual underpinnings and normative force of non-originalist theories, but much more importantly, he completely distorted the constraining force of originalism. Today there are as many different versions of originalism as there are non-originalist theories, maybe more. Original Originalists such as Judge Bork, Lino Graglia and Raoul Berger would be aghast at Randy Barnett’s and Ilya Somin’s originalist (and quite libertarian) calls to strike down much of the regulatory state, and to use the Ninth Amendment to enforce a strong libertarian form of judicial review. Allowing judges to pick and choose which economic regulations are valid and which aren’t, or which unenumerated rights to protect, would leave them enormous discretion, increasing judicial subjectivity. 

An “originalist” judge today could either advocate strong deference to state and federal laws in the name of the old, classic originalism, or could adopt Barnett’s and Somin’s theory of constitutional construction to strike down laws banning abortion, affirmative action, gun control and same-sex marriage. Or, an originalist today could simply embrace Professors Will Baude's and Stephen Sach's "inclusive originalism" which they claim was used by the Brown, Roe, and Obergefell  Courts. Conversely, an originalist could adopt Justice Thomas' method of decision-making which, as I showed here, roughly mirrors the GOP political platform with just a few exceptions.

The skeptical reader might respond that Scalia would reject most of  these newly-minted originalist theories. The problem with that reply is that, as noted above, Scalia consistently voted for non-originalist outcomes either by ignoring relevant history altogether, distorting it, or by using other interpretative outs, such as precedent, to avoid originalist results he did not favor. Scalia's originalism was no more constraining than any of the other varieties currently in vogue.

In sum, if you want to learn about Justice Scalia the man, and his views on many diverse and interesting topics, "Scalia Speaks" will likely keep your interest, and is well worth your time. And if you want to understand how Scalia defended his originalism, you can find that in the book as well. What you won't get, however, is a defense of originalism that responds to, or even takes account of, the major objections to the doctrine that, sadly, Scalia never responded to while he was alive. In other words, what you learn about constitutional interpretation from this otherwise fine book, is sound-bite originalism that even Scalia did not adopt as a serious method of constitutional interpretation.