BY ANY STANDARDS OF ENLIGHTENED CIVILIZATION
First, I want to be clear that this post is not an ad hominem attack against the deceased. Those looking for a good, ol’ fashioned character assassination or a raunchy, left-wing celebration of the death of an arch-conservative will be disappointed. No death should be celebrated. Justice Scalia was, first and foremost, a fellow human being making his way through this life in the best way he could. He was a devoted family man, a beloved father, grandfather and spouse. He was, despite the depth of his ideological drive, capable of cultivating sincere friendships among those with whom he disagreed. This is more than can be said about many ideologues. By the standards of civility and civilization Justice Scalia should be mourned and missed.
That being said, a distinction should be made between mourning the man and candy coating the legacy. Many are referring to Justice Scalia, albeit often begrudgingly, as a brilliant and transformative legal scholar. Brilliant and transformative may be accurate, but legal scholar is questionable.
After all, few figures in contemporary politics and legal scholarship could boast a more regressive and backward philosophy than Justice Scalia. The Justice, however, did not see this claim as a critique. He embraced his regressiveness, wore it like a shroud.
The basic principle of Scalia’s legal philosophy is known as textual originalism. The Heritage Foundation claims that this concept was first presented by Attorney General Edwin Meese in a series of lectures in 1985. In these lectures, Meese challenged the concept of the Constitution as a living text and claimed that judges should “embrace a ‘jurisprudence of original intention.'” That is, judges should, presumably through some mystic divination beyond the capacity of mortal men, interpret laws based on the intention of those who wrote the laws.
This legal construct was embraced by Justice Scalia, serving as a source of objective neutrality in his application of the law. Since Scalia was a member of the Supreme Court, his mission was, most often, to divine the intent of propertied, white men who died two hundred years ago. To rewind the clock, so to speak, and apply 18th century perspectives on late twentieth and early twenty-first century experience. Is that not the very definition of regressive?
There’s legal history, then the Constitutional Convention. Period. Nothing more. No industrial revolution. No social movements or cultural innovations. No railroads, automobiles, steam engines, electricity, skyscrapers, radio, television, computer chips. No flush toilets for that matter. A germ theory of disease as it applies to the law? Doesn’t matter. Irrelevant. The Founding Fathers said everything there was to say on the matter. Two hundred years of experience, learning and progress, culturally, scientifically, artistically and philosophically, are of no import to the textual originalist.
Of course, this is a ridiculous legal philosophy from the beginning. It is impossible to parse, via the written record, how anyone born two and half centuries ago would respond to issues that they themselves could never comprehend. How might the Founding Fathers have shaped the Bill of Rights if they had known about the internet, computer databases and high-tech surveillance, automatic assault rifles, nuclear bombs, mass media, industrial pollution or microbiotics? It’s impossible to know. These phenomena were so far outside of the Founders’ lived experience that if they were, somehow, brought back to life in the modern era they would experience a shock to their worldview that would be either transformative or debilitating.
Our cultural transformations alone would challenge the Founders’ very concepts of identity. I’m currently in a restaurant sitting across from a young lady wearing shorts and a tank top–in public! I know! George Washington would be scandalized by this level of indecency. Though some might disagree, something so taken for granted in our world would have been impermissible to our Founders. And this is only one example. Think about those paradigms which we accept as truisms that men two hundred years ago would never have contemplated. Multi-racial couples (take that Jefferson!). Openly gay identifying individuals. A rejection of the concept of “legitimacy” among our children and the number of unashamed, unmarried parents. Men and women interacting as equals. Gym memberships. Emoticons.
Add on top of this the fact that even in the time of our Founders, members of that generation did not speak with a unified voice. They argued and bickered. One of our Founders even shot another one of our Founders. This fighting among the Founders was of particular concern to George Washington who warned against the formation of factions. But factions came nonetheless. Jeffersonians hated, even presumed conspiratorial intent of, the Hamiltonians. Jefferson and John Adams attacked each other so vehemently that they refused to speak to each other until the end of their lives. Even if the Founders were able to grasp the immensity of the future in which we live, it is unlikely that they would agree on how to deal with it.
Furthermore, Antonin Scalia, being a very educated and historically savvy man, must have known this. I have not offered some radical reinterpretation of our founding history. This is established fact. So to suggest that contemporary judges could conjure up some internal voodoo through which to confer with the originators for the purpose of applying two hundred year old laws to modern life is a willful absurdity on their part. Yet this is what Justice Scalia and his acolytes would like us to believe.
At best, textual originalism is a rhetorical strategy, not a legal philosophy. It’s a method of arguing and legal claimsmaking of which Antonin Scalia was an unrivaled master. I can’t speak on Scalia’s particular legal aptitude, but as a rhetorician and claimsmaker he was as close to an evil genius as I’ve ever seen.
I understood the true depth of this genius a couple of years ago when Justice Scalia defended torture. “We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional.” However, Scalia goes on to explain, that torturing people for the sake of information, in his argument he uses the defunct ‘ticking bomb’ scenario for support, is not unconstitutional because it is not, strictly speaking, punishment. Torture is an interrogation. It is not intended as a form of retribution or as a means to change one’s behavior.
Wow! That really is a pretty brilliant disregard for the Eighth Amendment.
It’s also quite sinister. After all, this is the same man who, when it came to the questionable conviction and execution of Troy Davis after new evidence shed doubt on his conviction, wrote, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.”
Now as a legal argument, his position is absurd. Interpreting the law is less an objective science in which the words are the only variables. Legal analysis requires a negotiation and renegotiation of the principle of law. If you accept this interpretation, then you must also accept that there is no Constitutional protection from a representative of the state kicking you in the groin…so long as it’s not for punishment. Oh, you want to vote? You must submit to a kick in the groin first. Not willing to do that. Well you can’t vote. After all, there’s nothing in the Constitution that says I can’t deny you the vote because you are unwilling to be kicked in the groin.
This is not a legal argument. It’s a rhetorical frame used by Scalia to defend his elitist worldview. Scalia, as is also true for his son, is less an icon of legal scholarship and more a paragon of defending elite interests.
How else can one explain Scalia’s ruling in Citizens United. Where in the Constitution is campaign contributions understood as “speech” as opposed to “investment.” Again, this is an absurd notion, but an absurdity that benefits elite interests. How about Scalia’s position on Bush v. Gore. In this case the so-called textual originalist decided that it was up to the Supreme Court to appoint the President of the United States. On this the Constitution is quite clear. According to the 12th Amendment, “…if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote;”
A true textual originalist, should have allowed the Florida vote count to continue to its end, and if this was not sufficient for determining the allocation of Electors–which it wasn’t–the originalist should have required the House of Representatives to fulfill its Constitutional obligation.
To Scalia, textual originalism meant…whatever Scalia said it meant. Those who disagreed were subject to Scalia’s scorn. Yet the only consistent outcome of Scalia’s peculiar version of originalism was his dogged support for entrenched interests. Protecting the right of African-Americans to vote was “racial entitlement” in Shelby County v. Heller. Even if true, where exactly might a textual originalist find reference to such entitlements in the Constitution, for or against? Doesn’t the Constitution, as it was originally intended, vest the Congress with the responsibility to draft such laws as the Voting Rights Act if it is to protect the citizenry? “Get over it,” was Scalia’s only retort.
Justice Antonin Scalia is dead. As a fellow traveler, as a human being, as a family man, a friend and, yes, as a skilled political opponent, his loss should be lamented.
We should, however, be so lucky that his medieval legacy dies with him.
Unfortunately, the best we can hope for is that he be replaced by someone not at all like him.