Sunday, April 2, 2017

Was Justice Scalia an Originalist?

I think Scalia would consider himself one. But as I understand his theory, "originalism" was more of a third rung in his list of priorities. The higher two rungs were "textualism" and "democratic theory."

And certain things about the way in which courts operated during the time of the American Founding were arguably inconsistent with such. There is huge debate among originalists on the doctrine of natural rights, unenumerated rights, the Declaration of Independence receiving status as "law" for the purpose of constitutional interpretation. Scalia was with the legal positivists in this respect.

One thing American courts did from the time of the American Founding -- even though the dicta in Erie v. Tompkins almost shattered the metaphysical justification for such -- is look to the "brooding omnipresence in the sky" as they decided cases and controversies. State courts deciding common law matters did this more explicitly according to the theory than the Supreme Court has done.

But arguably all courts did this.

Yes the Supreme Court has arguably always exercised a sort of "common law" power of establishing rules of law as they decide cases and controversies and then following those rules under the doctrine of stare decisis. See this article by a notable law professor for more detail. Whether they call it "living constitutionalism" or looking to the "brooding omnipresence in the sky" and then "discovering" the answer, the results are the same.

I think Scalia's response was, for the Supreme Court to do such is illegitimate in the age of "democratic theory." But again, it's not some new practice. Though post-Erie, the legal positivists who think it proper for judges to continue to do this needed new grounds to justify the practice. Hence "living constitution" as opposed to "brooding omnipresence."

But where would Justice Scalia's theory take us?

I think Scalia has gotten a bad rap by his left of center critics when they argue he was a results oriented justice who believed in imposing his personal preferences on the court. Certain biting and sarcastic statements taken out of context from his dicta support such charges. Also Scalia didn't always perfectly live up to his principles. In Boy Scouts v. Dale he supported the "penumbral" reasoning of the case to avoid a "bad" result.

But on abortion, an issue dear to the hearts of doctrinaire socially conservative Roman Catholics (what Scalia was personally) he made it clear if the states want to permit abortion on demand, they could do such. It's state legislatures who should be deciding this. On the issue of a woman's right to have an abortion as a "constitutional right," analogize it to freedom of speech.  Such is explicitly in the text of the Constitution. The right to abortion is not. If it were, presumably Scalia would hold there is a "constitutional right" to have an abortion, as there is with freedom of speech.

One reason why Scalia may not have been perfectly consistent in the way in which he applied his theory is that in the absence of nine Justice Scalia clones on the Court, you have to get other justices to join your opinion (and vice versa). Always demanding ideological purity from one's peers would mean always writing dissenting, concurring or plurality opinions (at least on those hot button politicized cases that grab our attention).

But the ironic results of Scalia's judicial utopia would have American courts look more European. It's ironic because Scalia has taken a position against the citing of non-American law, except of course the British common law. But such would render American courts to look more like the non-British common law European nations. In these "code law," that is non-common law nations (France, Spain, Germany, Italy, etc.) it's clear courts play a subservient role to the legislatures. There is no stare decisis in such systems. They have a democratically enacted text and if the texts aren't clear enough such that courts have to "fill in a gap," such has no precedential value as a "rule of law."

There is a position further seemingly more extreme than Scalia's held by law professor Lino Graglia that argues Marbury v. Madison was the first "activist" court decision. Therefore, the power of judicial review should be taken away from American courts. I'm not sure where Scalia exactly stood on this. A law professor of mine told me (hearsay) that at some regalia, Scalia told the group he would likewise overrule Marbury. On the other hand, he may have been convinced by the scholarship of Philip Hamburger that demonstrates Marbury's originalist bona fides.

But just how "conservative" is Graglia's position? It's the identical position of left of center law professor Jeremy Waldron, who supports hate speech laws. (Canada, Australia and most of Europe have them.) And as noted, it would render America's judicial system into something that looks closer to the current European "civil law" nations.


Tom Van Dyke said...
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Tom Van Dyke said...

Exc post. I'd say you're right about Scalia's prioritizing 'textualism,' but that also overlaps with originalism.

Perhaps the one nuance most critics are unaware of is that it's not original intent of those who wrote the law, it's the original meaning as understood by those who ratified or passed it. This gets into some tall weeds, as there can be honest scholarly disagreement as to what they believed they were approving. But the method of "original public meaning" takes out the 'mindreading' part of trying to put ourselves into their heads, a more subjective enterprise.

And it's not the legislating from the bench that we see the left do so unapologetically. Whatever the limitations of originalism [or textualism], it beats the alternative of a judge making his own druthers and biases the measure of the law.

This speech from 2005 is my favorite glimpse into Scalia's thinking.

As to

if the texts aren't clear enough such that courts have to "fill in a gap"

Scalia would simply reply that where the Constitution is silent, it is silent, which is where you aptly point out, is properly left to the people, and the democratic process.


"Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong!

Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law.

Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitutes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.

And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . .

It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist."