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Volume 44, Number 2 (Winter 2006)

Scalia the Originalist

Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice
edited and with commentary by Kevin A. Ring.
Regnery Publishing (Washington, D.C.), 338 pp., $27.95 cloth, 2004.

The Opinions of Justice Antonin Scalia: The Caustic Conservative
edited and with commentary by Paul I. Weizer.
Peter Lang Publishing (New York), 256 pp., $25.95 paper, 2004.

Edward Whelan

book cover imageAs he marks his twentieth year on the Supreme Court, Justice Antonin Scalia has established himself as the foremost defender of the constitutional orthodoxy of originalism—in particular, of the “original meaning” species of originalism. The central principle of original-meaning jurisprudence is that the various provisions of the Constitution, and of other laws, are to be interpreted in accordance with the meaning they bore at the time they were promulgated.

The legitimacy of originalism inheres in the very nature of law as command. This point is readily recognized on issues that are not politically contentious. How should we determine, for example, what it means to be a “natural born Citizen” (one of the Constitution’s requirements to be eligible to become President)? Virtually everyone, I daresay, who has not suffered the disadvantage of a modern law-school miseducation intuitively grasps that the proper approach is to discern and apply the sense of that phrase when it was adopted.

But which original “sense” should control? The subjective intention of the lawgiver, as “original intent” theory would suggest? Or the objective public meaning of the text of the law? The “original meaning” school—now dominant within originalism but not, alas, within the broader legal culture—endorses this latter approach. As Scalia has written, “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by [the objective meaning of] what the lawgiver promulgated.”

This democratic underpinning of original-meaning interpretation and the very idea of an original public meaning in turn presuppose that the Constitution is, by and large, intelligible to the ordinary citizen. This presupposition is deeply rooted in the American understanding. For example, Jefferson, as President, wrote: “The Constitution on which our Union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption.” Joseph Story, the great Justice and constitutional scholar from the early 19th century, likewise observed:

Constitutions are not designed for metaphysical or logical subtleties. . . . They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense.

Fittingly, Scalia, the great defender of original-meaning jurisprudence, displays a sparkling prose and a logical rigor that make his opinions especially accessible and appealing to the intelligent layman. Two recent books—Kevin Ring’s Scalia Dissents and Paul Weizer’s The Opinions of Justice Antonin Scalia—do a valuable service in providing the public a selection of his opinions. In broad strokes, these books are very similar. Roughly the same length (in words, not pages), each presents in their entirety or in substantial excerpts about twenty Scalia opinions, organized by subject matter. Each includes an introductory essay that aims to summarize Scalia’s judicial philosophy as well as limited commentary that frames the opinions.

Ring’s is markedly the better book. Ring presents a clear and accurate account of Scalia’s originalism. Weizer’s summary, by contrast, is jumbled with a number of significant errors. Weizer asserts, for example, that Scalia’s “textual approach should not be confused with strict constructionism or originalism.” (Emphasis added.) But Scalia’s textualist approach is originalist. Weizer also claims that Scalia “views the originalist approach as flawed” because it “may well be incompatible with the concept of stare decisis” (adherence to precedent). But as Scalia explains in his book A Matter of Interpretation, the doctrine of stare decisis, insofar as it requires that some wrong opinions be maintained “in the interest of stability,” is a pragmatic “compromise of all philosophies of interpretation.” No interpretive theory “put into practice in an ongoing system of law” can “remake the world anew.”

Weizer, a political scientist, also misunderstands the political ramifications of Scalia’s originalism. He claims that Scalia’s approach “will, more often than not, tend to favor the government over the individual.” But this claim obscures what is really at stake and begs the question of the proper baseline for comparison. The originalist approach should yield victories for the “government”—less tendentiously understood as the citizens’ collective exercise of their rights of self-governance—precisely in those cases where the Constitution fails to provide judges any warrant to override the popular will as expressed through democratically enacted laws. Granted, advocates of the make-it-up-as-you-go-along approach that hides behind the misnomer of the “living Constitution” have willy-nilly discretion to usurp the democratic processes to deliver undeserved victories to the “individual.” But it is far from clear why the non-originalist’s inclination to invent rights that aren’t in the Constitution—and to ignore rights that are in it—should be presented as a mark against Scalia and originalism.

Notwithstanding his evident admiration for Scalia, Weizer repeats, over and over, the sloppy charge that Scalia “never shies away from making personal attacks to further his argument” (emphasis added). But what Weizer mislabels “personal attacks” are uniformly critiques of arguments, not of persons. These critiques are often devastating, to be sure—precisely because their targets are often so feebly assembled—but they are not ad hominem.

Ring, on the other hand, is unabashed in his celebration of Scalia. I readily admit to sharing Ring’s bias and will plead only that the bias is a well-informed one. The reader who might initially find Ring’s enthusiasm excessive should defer judgment until he has read the Scalia opinions that Ring presents.

Although there is substantial overlap in the case selection—eleven Scalia opinions are in both books—Ring’s set is more interesting for two reasons. First, Ring focuses on opinions (not just dissents, as the title would suggest, but also some concurrences) where Scalia is speaking in his own voice, rather than in the more institutional voice of a majority opinion. Second, Ring’s subject-matter organization is adapted naturally to the cases, whereas Weizer seems intent on finding a formulaic four cases for each of his “areas of legal study.”

The starkest illustration of the difference is that Ring properly highlights, whereas Weizer omits, Scalia’s brilliant solo dissent in Morrison v. Olson. In that 1988 case, the Court, in an opinion by Chief Justice Rehnquist, ruled that the independent-counsel statute did not violate the Constitution’s separation of powers. Scalia’s remarkable dissent, at the end of what was only his second year as a Justice, was arguably the first clear signal of what makes Scalia both great and distinctive. The originalist analysis in Scalia’s dissent was made all the more compelling by his striking prose. Two passages may illustrate the point. Separation-of-powers issues, Scalia observed, often “will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” And addressing Rehnquist’s claim that the independent counsel remained subject to “some” presidential control and that “[m]ost important” among these controls was the Attorney General’s “power to remove the counsel for ‘good cause,’” Scalia memorably responded: “This is somewhat like referring to shackles as an effective means of locomotion . . . . [L]imiting removal power to ‘good cause’ is an impediment to, not an effective grant of, Presidential control.”

For too long, the non-lawyer interested in the Supreme Court’s decisions did not have ready access to them but instead had to rely on the partial (both in the sense of limited and in the sense of biased) accounts of journalists. It is not difficult to imagine that the Court’s protection from public scrutiny has been one of the many factors that has produced the sort of decisions that insipidly proclaim as did the majority opinion in the 1992 decision Planned Parenthood v. Casey that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—and that thereby assert that the Court has a roving mandate to define which particular interests should be beyond the bounds of American citizens to address through legislation. Over the last several years, the Internet has made the Court’s decisions widely available, but many intelligent citizens still suppose that the Court’s work is too arcane for their attention. Ring’s book (and, to a lesser extent, Weizer’s) ought to help develop a wider readership for Scalia’s opinions and, in the process, awaken American citizens to their duty to work to reclaim the Constitution from the unlawful power grabs of the judiciary.

Edward Whelan, a former law clerk to Justice Scalia, is president of the Ethics and Public Policy Center and is a regular contributor to National Review Online and to its Bench Memos blog on judicial nominations.

Posted: March 21, 2007

The conservative believes that the individual is foolish, although the species is wise; therefore, unlike the confident intellectual, he declines to undertake the reconstruction of society and human nature.

Russell Kirk

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