Constitutional Kooks: Originalism and History

Guest post by Dr. William Turner. 

News reports tell us that Supreme Court Justice Antonin Scalia lectured incoming members of Congress on the Constitution at the invitation of House member Michele Bachman.

Memo to the Members: Both Scalia and Bachman are Constitutional Kooks.

Bachman has said she wants her fellow Minnesotans “armed and dangerous” in response to certain pending federal laws.  I guess she missed the Supremacy Clause, Article VI, Clause 2, of the U.S. Constitution, which declares that laws enacted pursuant to the Constitution are “the supreme law of the land.”

But Bachman at least has the excuse of being a politician, and one who has to win reelection every two years as a Member of the House of Representatives (unless she plans unilateral rejection of that clause as well).

Scalia, by contrast, as a Supreme Court Justice, has no excuse.

He fancies himself  a judicial conservative and an originalist.  In my opinion, as one who holds both a Ph.D. in U.S. history and a law degree, for Scalia to live up to the title of “originalist,” he would need to have a Ph.D. in U.S. history with a focus on the Constitutional and Early National periods in addition to his law degree.

An originalist, according to Scalia, practices judicial interpretation by adhering as closely as possible to the original meaning of legislative or constitutional text as its authors would have understood it.

One obvious problem with this approach in matters of interpreting the U.S. Constitution is that many of the men who wrote, ratified, and first used it were slave owners. Perhaps Scalia has no qualms about taking moral, legal, and political guidance from slave owners, but I do, and I think many other contemporary Americans would share my reservations.

Another problem with “originalism” is that, on doing the extensive reading a Ph.D. in U.S. history would require, he would quickly learn that professional historians do not agree among themselves about what the “original meaning” of the Constitution was to those who wrote it, and an important source of disagreement is the obvious disagreements among the men who wrote, ratified, and first governed under the Constitution about its correct meaning and interpretation.

Also, although it is possible to earn a Ph.D. in history while resolutely ignoring significant philosophical debates, if Scalia were at all intellectually curious and honest as a graduate student, he would undoubtedly stumble across the unpleasant (to Scalia, anyway) fact that virtually every important philosopher in the late twentieth and early twenty-first centuries has arrived at some version of the conclusion that human language is simply never as firmly fixed as Scalia in his current manifestation apparently believes it to be, rendering at best highly dubious Scalia’s claim to be able to pin down with great certainty the meaning of words from two hundred thirty years ago.

But historians do agree on one very specific conclusion that badly undermines a particular proposition Scalia is very fond of: James Madison, often identified as the “Father of the Constitution” for his intellectual and political leadership in writing and securing the ratification of the Constitution, was unthrilled about the proposal to add on a bill of rights, not because he opposed protecting minority rights, but because he feared that future generations would do exactly what Scalia does: conclude from the presence of a list of specific rights that those are the only rights the people may claim.  Scalia, of course, is famous for the idea that Supreme Court justices should adhere strictly to the text of the Constitution in identifying the rights the Constitution should protect.

In short, because of his ignorance of U.S. history, Scalia, with his claims to “originalism” ends up doing exactly the opposite of what the Father of the Constitution wanted him to do: restricting minority rights rigorously to those that the Constitution expressly states.

Thus, far from ensuring, as Scalia claims, judicial conservatism, “originalism” is really just a cheap excuse for what Scalia really is: a judicial activist on behalf of conservative political causes.

Madison was so worried about the problem, which he had witnessed first hand in the governments of the colonies as soon as they freed themselves from English domination, of majority tyranny over minorities, that he actively promoted the idea that the Constitution should expressly give Congress the power to overrule state laws – just the opposite of recent Tea Party proposals to give state legislatures the power to negate acts of Congress.

So much for Constitutional conservatism.

But this is just what we should expect from the sort of harrumphing conservative anti-intellectualism that Scalia and his ilk practice.  Who needs expert knowledge of one’s self-proclaimed professional domain?  Scalia is perfectly comfortable, for reasons that escape those of us who have professional knowledge of the subject, flying by the seat of his pants.

Might makes right, and, since Scalia was lucky enough to stumble into the enormous power of a Justiceship on the United States Supreme Court, he seems blissfully unashamed of his fundamental ignorance of basic historical information that reasonably seems essential to his proper discharge of his responsibilities.

©2011 Dr. William Turner. Visit his web site

One Comment

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