It is a cold, bright blue Sunday here in the Bowels of the lower U.S. I'm located in what is surely the Rectum, in the Heart of Dixie. A perfectly good time, as it were, to reflect on the contributions of our most prominent, jovial, and likable Supreme Court Judge, who left us only hours before Valentines day, 2016, after doing something he truly loved, hunting upland game.
His exuberance and comic wit will be sorely missed by friends and foe alike. But I, for one, won't miss his stunningly illogical approach to the U.S. Constitution. While Scalia preferred another word to describe it, he thought, in fact he was adamant, that the U.S. Constitution, together with its amendments, was as dead as a doornail. Since a dead document might be thought to be immutable, one might make the mistake of thinking, as I once did, that Scalia was a "strict constructionist." He wasn't. He wasn't a "Textualist" either, though he sometimes wrongly attributed that term to himself. In legal terms, a textualist is someone who interprets the law according to the usual and customary meaning of what is written. Obviously there is a close relationship between textualism and strict construction -- two concepts, I have learned, that Antonin Scalia could skillfully ignore when it suited his purpose.
Scalia was neither a textualist nor a strict constructionist; He was an "Originalist." This is how he described himself and he could, so far as I know, have coined the term, since it so well fit his purpose. An Originalist is a person who gets into the minds of those who argued a law at the time of enactment and determines from their written arguments, and supporting documents, what those who enacted the law actually intended. The Originalist can then choose between what is actually written and what was intended. Very convenient, I would think, and a great help when expediency of the moment is paramount to one's purpose. A dead document in the eyes of an Originalist is not so much a corpse as a Zombie. It can spring back to life according to the mindset, or at least the Originalist's interpretation of the mindset, of those who created it.
There is no better example of Originalism being applied to law than Heller v. D.C. Scalia wrote the prevailing opinion. The case revolves around interpretation of the Second Amendment which reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In Heller, Scalia argues that at the time the Second amendment was debated there was a split in opinions among those who leaned toward greater Federalism and those who remained wary of Federal power and sought to protect individual State Sovereignty, the latter being in the majority. The Amendment, according to Scalia is a compromise drafted so as to appease both sides. Is the amendment speaking to individual State militias, or State militias combined, or reconstituted, into a Federal Militia, or not to militias at all, but something else entirely? A textualist might conclude that since the closest thing we have to a militia today are the various State National Guard outfits, and since National Guard armories are chock full of weapons, there is today hardly a need for the Second Amendment. Is the Amendment obsolete, or at least obsolescent? Apparently not! As we all know, since Heller, a simple, textual reading of our revered Second Amendment is rubbish. To properly understand what was really intended, one, according to Scalia, must apply Originalism.
Scalia briliantly applies Originalism, along with some not too subtle arm waving, to argue that what was intended was that the States, and by extension the individual citizens of those States, should have the ability to protect against Federal incursion. To many of us today, however, what was a realistic concern to the wealthy 18th Century Gentleman, conjures up a rather comical picture of a bandoliered NRA member standing in his doorway with an Abrams tank approaching. The National guard, our present day militias, can be commandeered by the Federal Government -- Just as Kennedy did to prevent Ross Barnett from using the Mississippi guard to stop James Meredith from Enrolling at Ole Miss. Originalist Scalia determined, according to "original" intent, that we still have the right to keep arms in case the Federallies come calling, and obviously the National guard, being 'National' won't be all that helpful in that situation. He concluded that the introductory clause of the Second Amendment was just that, and not material to the intent of the Amendment. According to his interpretation of intent, we can figuratively shred the Constitution and put it back together so as to express what was really intended at the time the Second Amendment was adopted.
Then in a striking inconsistency and complete turn around from his previous rebuke of colleagues for wanting to cite foreign law in domestic law arguments, Scalia falls back on English law to argue that the Second Amendment is really moot in any case. Because our laws trace to English law, he argues the right of citizens to own firearms is inalienable, regardless of the Second Amendment.
I cheered when I read this latter argument, though it represents an inconsistency in Scalia's thinking. (He would likely argue, were he with us today, that since our common law stems directly from English law, that it is OK to use English law, and his admonishment of Court Colleagues referred to other foreign law.) In reality his arguments in Heller based on English law are probably no stronger, and likely weaker, than his arguments based on Originalism. What seems obvious to me is that you don't need particularly compelling arguments in any case when expediency is going to prevail regardless of the arguments.
This leads me directly to the utter absurdity of adopting Originalism as a way of rescuing yourself from a claim that the Constitution is dead. It may be dying, but it is not dead. The constitution is aging, and it's badly in need of revision or replacement -- which most of us would find too dangerous to seriously entertain. How stunningly illogical it is to interpret our Constitution in light of 18th and 19th Century thinking rather than current reality. Or for that matter, how equally illogical to use Originalism to concoct an argument to satisfy current expediency when it is totally unnecessary. I can't accept that we should be falling back on the intent and mindset of those living in a time when the country was completely controlled by wooden-teethed wealthy white land owners, the Senate was appointed, and nothing moved faster than a horse. You can argue that aspirations, and the basic rights of man are still the same today as they were then, but why bother? Why not base decisions now, on current reality. Antonin Scalia was a brilliantly ridiculous jurist. But still he managed to get his way much of the time, and likewise we've managed, so far, to withstand much of the damage done...
His exuberance and comic wit will be sorely missed by friends and foe alike. But I, for one, won't miss his stunningly illogical approach to the U.S. Constitution. While Scalia preferred another word to describe it, he thought, in fact he was adamant, that the U.S. Constitution, together with its amendments, was as dead as a doornail. Since a dead document might be thought to be immutable, one might make the mistake of thinking, as I once did, that Scalia was a "strict constructionist." He wasn't. He wasn't a "Textualist" either, though he sometimes wrongly attributed that term to himself. In legal terms, a textualist is someone who interprets the law according to the usual and customary meaning of what is written. Obviously there is a close relationship between textualism and strict construction -- two concepts, I have learned, that Antonin Scalia could skillfully ignore when it suited his purpose.
Scalia was neither a textualist nor a strict constructionist; He was an "Originalist." This is how he described himself and he could, so far as I know, have coined the term, since it so well fit his purpose. An Originalist is a person who gets into the minds of those who argued a law at the time of enactment and determines from their written arguments, and supporting documents, what those who enacted the law actually intended. The Originalist can then choose between what is actually written and what was intended. Very convenient, I would think, and a great help when expediency of the moment is paramount to one's purpose. A dead document in the eyes of an Originalist is not so much a corpse as a Zombie. It can spring back to life according to the mindset, or at least the Originalist's interpretation of the mindset, of those who created it.
There is no better example of Originalism being applied to law than Heller v. D.C. Scalia wrote the prevailing opinion. The case revolves around interpretation of the Second Amendment which reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In Heller, Scalia argues that at the time the Second amendment was debated there was a split in opinions among those who leaned toward greater Federalism and those who remained wary of Federal power and sought to protect individual State Sovereignty, the latter being in the majority. The Amendment, according to Scalia is a compromise drafted so as to appease both sides. Is the amendment speaking to individual State militias, or State militias combined, or reconstituted, into a Federal Militia, or not to militias at all, but something else entirely? A textualist might conclude that since the closest thing we have to a militia today are the various State National Guard outfits, and since National Guard armories are chock full of weapons, there is today hardly a need for the Second Amendment. Is the Amendment obsolete, or at least obsolescent? Apparently not! As we all know, since Heller, a simple, textual reading of our revered Second Amendment is rubbish. To properly understand what was really intended, one, according to Scalia, must apply Originalism.
Scalia briliantly applies Originalism, along with some not too subtle arm waving, to argue that what was intended was that the States, and by extension the individual citizens of those States, should have the ability to protect against Federal incursion. To many of us today, however, what was a realistic concern to the wealthy 18th Century Gentleman, conjures up a rather comical picture of a bandoliered NRA member standing in his doorway with an Abrams tank approaching. The National guard, our present day militias, can be commandeered by the Federal Government -- Just as Kennedy did to prevent Ross Barnett from using the Mississippi guard to stop James Meredith from Enrolling at Ole Miss. Originalist Scalia determined, according to "original" intent, that we still have the right to keep arms in case the Federallies come calling, and obviously the National guard, being 'National' won't be all that helpful in that situation. He concluded that the introductory clause of the Second Amendment was just that, and not material to the intent of the Amendment. According to his interpretation of intent, we can figuratively shred the Constitution and put it back together so as to express what was really intended at the time the Second Amendment was adopted.
Then in a striking inconsistency and complete turn around from his previous rebuke of colleagues for wanting to cite foreign law in domestic law arguments, Scalia falls back on English law to argue that the Second Amendment is really moot in any case. Because our laws trace to English law, he argues the right of citizens to own firearms is inalienable, regardless of the Second Amendment.
I cheered when I read this latter argument, though it represents an inconsistency in Scalia's thinking. (He would likely argue, were he with us today, that since our common law stems directly from English law, that it is OK to use English law, and his admonishment of Court Colleagues referred to other foreign law.) In reality his arguments in Heller based on English law are probably no stronger, and likely weaker, than his arguments based on Originalism. What seems obvious to me is that you don't need particularly compelling arguments in any case when expediency is going to prevail regardless of the arguments.
This leads me directly to the utter absurdity of adopting Originalism as a way of rescuing yourself from a claim that the Constitution is dead. It may be dying, but it is not dead. The constitution is aging, and it's badly in need of revision or replacement -- which most of us would find too dangerous to seriously entertain. How stunningly illogical it is to interpret our Constitution in light of 18th and 19th Century thinking rather than current reality. Or for that matter, how equally illogical to use Originalism to concoct an argument to satisfy current expediency when it is totally unnecessary. I can't accept that we should be falling back on the intent and mindset of those living in a time when the country was completely controlled by wooden-teethed wealthy white land owners, the Senate was appointed, and nothing moved faster than a horse. You can argue that aspirations, and the basic rights of man are still the same today as they were then, but why bother? Why not base decisions now, on current reality. Antonin Scalia was a brilliantly ridiculous jurist. But still he managed to get his way much of the time, and likewise we've managed, so far, to withstand much of the damage done...