Scalia’s Anti-American “Originalism”

In recent years, theories of legal interpretation of the Constitution have been a battlefield on which self-described originalists, preeminently Justice Antonin Scalia, who view the meanings of the Constitution as fixed at the time of its framing, are arrayed against living constitutionalists, who declare it to be alive and subject to change over time.  Eugene Goodheart has analyzed this ideological conflict in a chapter in his new book, The State of Our Disunion. (A version of the chapter was originally published in the journal, Society.) What follows is an excerpt from that chapter. It ends with a consideration of the Declaration of Independence, which Goodheart invokes to bring home (what might be termed) the anti-Americanism of Scalia’s “originalism.”

Scalia complains that “the American people have been converted to a belief in The Living Constitution, a ‘morphing’ document that means from age to age what it ought to mean,” as distinguished from what it actually means (A Matter of Interpretation, 47). David Strauss, writing in defense of a Living Constitution points out what we would have to “give up” in the moral progress we have made as a society if originalism were rigorously applied: schools would remain racially segregated, racial minorities and women would be the target of federal discrimination, the Bill of Rights would not cover the states; federal, labor, environment and consumer protection laws would be declared unconstitutional (See The Living Constitution, 12 ff). Since he finds the political results of the originalist approach to the Constitution morally repugnant, he looks elsewhere for guidance in interpreting and applying the law. He finds it in the place where laws have already evolved, the common law, which he characterizes as “the ebb and flow of precedent, not the text of the constitution or the original understandings, that accounted for the shape of the law” (67–68). Strauss would seem to agree with Scalia that the written Constitution per se is not alive. It is the ebb and flow of the common law supplemented by the written constitution that is alive. In the instances he provides, the common law seems to evolve in the direction of greater and greater equality, fulfilling the promise of The Declaration of Independence. “Ebb and flow” is a somewhat misleading metaphor, since it describes a forward and backward movement, which keeps things in place, whereas Strauss has the law ideally moving forward in a progressive direction. Scalia charges that living constitutionalists are motivated by a view of what the law ought to be, not what it is. Strauss in effect argues that the living constitution aspires to embody justice, and where it is lacking judges should find opportunities to interpret the law so as to advance the cause of justice. Scalia views the business of the law as the law, not justice.

Like Strauss, Scalia acknowledges that “ours is a common law tradition” (Reading Law, 3), and he concedes that stare decisis (precedent) allows for deviations from originalist interpretation. He and his co-author Bryan A. Garner “do not propose that all decisions made, and doctrines adopted, in the past half-century or so of unconstrained constitutional improvisations be set aside—only those that fail to meet the criteria of stare decisis. These include consideration of (1) whether harm will be caused to those who justifiably relied on the decision, (2) how clear it is that the decision was textually or historically wrong, (3) whether the decision has been generally accepted by society, and (4) whether the decision permanently places courts in the position of making policy calls appropriate for elected officials” (411–412). In footnotes Scalia and Garner provide examples of cases and allow that originalists may differ in their answers to these questions. We are now at a considerable distance from the presumption of what the text was understood to mean at the time of its framing. Who is to be the judge “whether harm will be caused” or “how clear…the decision was textually or historically wrong” or “whether the decision has been generally accepted by society” or whether it permanently preempts legislative authority? Originalism by itself can hardly be a guide.

Scalia complains that judges who hold the view that the Constitution is alive give themselves license to construe the law according to their ideological desires, allowing, in short, for rampant subjectivism in interpreting the law. Is this necessarily so? The alternative to originalism need not be the extreme of “anything goes.” Responsible interpretation has its constraints, but it should also be free to range beyond the restricted area of meaning as believed to be understood at the time the text was written, so long as it doesn’t willfully distort the language of the text.

Scalia maintains that at the time of the framing of the Constitution, a felony was assumed to entail the death penalty; hence, the death penalty is not unconstitutional.

“For me…the constitutionality of the death penalty is not a difficult, soul wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for ‘evolving standards of decency,’ but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the 50 states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish” (“God’s Justice and Ours” adopted from remarks given at a conference sponsored by the Pew Forum on Religion and Public Life at the University of Chicago Divinity School).

The passage is remarkable for its cool acceptance (no soul-wrenching for Scalia in the matter of the death penalty) of what is surely “cruel and unusual” punishment allowed by the Constitution, according to originalist understanding. If all felonies, regardless of their enormity, may lead to the death penalty, we are indeed in barbaric times. Any person at the time of the framing who would accept such an understanding of the death penalty could hardly be called reasonable. Remember this is the time of the Enlightenment. In the spirit of being a flexible originalist (an oxymoron he embraces), Scalia would not uphold the sentence of death for a horse thief—as a judge at the time of the framing of the Constitution might have done without a twinge of conscience. But such flexibility on Scalia’s part would only illustrate the vulnerability of originalism as a judicial doctrine. It is hard to know what to make of his somewhat off-putting concession to “evolving standards of decency,” which he encloses in quotation marks as if the phrase belongs to a language foreign to him. He allows the legislature to evolve, but there is apparently little room for evolution in the Court. And isn’t it odd that Scalia, who rigorously insists that reasonable persons living at the time of the framing of the Constitution are the final arbiters of its meaning, would invoke Hollywood’s version of our early history as proof of what the Constitution permits?

“Originalism is the only approach to text that is compatible with democracy” (Reading Law, 82). Scalia repeatedly insists that originalist theory is a democratic legal theory, since it defends the primacy of the legislature against the judicial activism of non-originalists and living constitutionalists in making laws. “Only in the theater of the absurd does an aristocratic, life-tenured, unelected council of elders set aside laws enacted by the people’s chosen representatives on the ground that people do not want those laws” (408). In practice, however, originalists (Scalia and Clarence Thomas openly subscribe to the doctrine,) rule against the legislature when they view laws as unconstitutional—for instance, against laws on the role of money in elections, voting rights and health care. In apparently venerating both the Constitution and democracy, Scalia shows no awareness of the vulnerability of the Constitution as a democratic document, since it allows for minority control of the Senate by providing each state, irrespective of the size of its population, two senators, effectively giving a minority the power to block the will of the majority. The democratic ideal is not in the Constitution, but rather in the Declaration of Independence in its affirmation of equality. Equality appears late in the Constitution in the Fourteenth Amendment as equality before the law. Moreover, Scalia’s trumpeting of the originalist interpretation of the Constitution as democratic seems devoid of reality, given the power of nine unelected justices serving life terms (all of which he embraces) to decide whether laws enacted by the legislature are constitutional.

Originalists charge the advocates of a living Constitution as judicial activists, bent on remaking the Constitution in the interests of their liberal agenda. The fact is that interpretation is inescapably an exercise in activism on both sides of the ideological spectrum, especially when cases arise that have not been anticipated in the Constitution such as those involving abortion or health care or gun control. The ambiguous language of the Second Amendment is open to conflicting interpretations. The non originalist, whose bias is liberal, actively wanting to limit, if not ban, the availability of guns, insists that the Second Amendment applies only to militias and not to individuals, the originalist, whose bias is conservative, with an affection for guns and mistrusting government intervention, actively gives the words of the amendment wide berth, construing the right of “the people” to bear arms to apply to individual ownership. The words by themselves do not determine the interpretation or its application to a particular case. The minds of the interpreters on either side of the political and judicial spectrum are not blank tablets that passively receive the meanings of words.

As for The First Amendment, the guarantee of freedom of speech does not specify its range or limitations. What it means and how it applies are by no means always clear and straightforward. In Citizens United versus Federal Election Committee, the Court decided by a five to four vote (by a single vote!) to remove the limits placed by Congress on the expenditure of money in political campaigns by corporations, unions and wealthy organizations as unconstitutional. So ruled the conservative majority, Scalia among them. The decision to free corporations and super pacs (generally favoring Republicans) and unions (generally favoring Democrats) to spend vast amounts of money in support of one side or another might be viewed as an exercise in evenhandedness. But corporations have much more money than unions, so the practical effect of the Court decision is to enhance the electoral influence of corporations and the very wealthy. The risk is that the freedom of the wealthy overwhelms the freedom of those without money in the electoral process? The Court majority did not take into consideration the potential, if not actual, threat to the freedom of those who do not have money and the power to go with it. Or, if they did, they decided on balance that the “free speech” of those with money outweighed the claim of those without money.

Here is an analogy from ordinary life. In a conversation or debate, a person who cannot stop talking makes it difficult, if not impossible, for a person of fewer words to express herself. Think of how those without money can be overwhelmed by the speech bought by those who have money. The phrase “freedom of speech” does not automatically yield the meaning that determined the decision in the case. My general point is that judges are not passive or detached readers; they come to the text with contending ideas of what the text means and permits or proscribes, reflecting their different ideological biases. Those ideas may or may not be the outcome of careful and disinterested reflection. They may or may not distort the meaning of the text. Whichever way one decides, for or against, an exercise of judicial activism occurs. In providing examples of conservative bias in the interpretation and application of the Constitutions, I do not mean to exempt liberal justices from bias. I have focused on conservatives of originalist persuasion, because they generally raise the specter of judicial activism as something to beware of as if they themselves are free of what they regard as a vice. They are not.


The Declaration of Independence has no formal or official authority in the interpretation of the law. As I have already noted, absent from the main body of the Constitution is the powerful affirmation of the equality of all men that we find in the Declaration of Independence. Voting Rights and same sex marriage: these are contemporary issues that reflect the theme of equality, for which the originalist interpretation of the Constitution provides little or no support. The Fourteenth Amendment introduced the theme of equality in the Constitution. Equality is, so to speak, an appendage to the main body of the text. We need then to keep in mind the moral limits of the Constitution—which means granting to judges as much interpretive freedom as the words of the Constitution reasonably allow. Scalia provocatively speaks of the Constitution as “dead” or “enduring,” which in his lexicon means unchanging. The question should not be whether the Constitution is dead or alive, but rather whether its interpreters are alive or dead. Elected officials from the president down do not swear to uphold the Declaration of Independence, but there is no law forbidding the president or a member of Congress or a judge from keeping it in mind as he fulfills his promise to uphold the Constitution.

Lincoln’s view of the Constitution and the right relation to it is instructive. He opposed the Supreme Court’s decision in the Dred Scott case, which declared that slaves, whether free or not, could never become citizens of the United States, but, as John Burt contends in Lincoln’s Tragic Pragmatism, he was not prepared to repudiate it in behalf of “higher law idealism.” Lincoln did not “claim that one has in one’s own conscience an authority higher than the Court to declare the meaning of the Constitution” (481). He did, however, hold the Declaration of Independence with its assertion that all men are created equal in higher regard than he held the Constitution. Again according to Burt, the Constitution had an imperfect conception of liberty and, he might have added, of equality. He gave “the promises of the Declaration priority over the Constitution, reaching back [in the Gettysburg address] four score and 7 years ago to 1776” (651), not to 1787. The decision of the Supreme Court in the Dred Scott case did not disqualify Lincoln or any citizen from dissenting from it in the political arena and seeking change, even to the point of trying to influence the interpretive decisions of the judiciary. If Scalia has his way, it would not only be possible to ignore the Declaration of Independence, it would be necessary. “If you want aspirations, you can read the Declaration of Independence, with its pronouncement that ‘all men are created equal’ with ‘unalienable rights’ that include ‘life, liberty and the pursuit of happiness.’…There is no such philosophizing in our Constitution, which unlike the Declaration of Independence…is a practical and pragmatic charter of government” (A Matter of Interpretation, 134). He may be right in distinguishing the characters of the two documents, though he gives short shrift to the theme of equality, minor as it is, in the Constitution. In any event, there is no prohibition in the Constitution or elsewhere against judicial action that is inspired by the Declaration of Independence.

What America was in 1787 is not what it has become. A Constitution that is unresponsive to historical change does not deserve to be the object of reverence. Which is not to say that those who interpret the Constitution are required to endorse every change that occurs. But for interpretation to remain stuck in understandings of the past can turn the document into an obstacle to the free and healthy development of the society it helped create. Consider the Second Amendment; it did not foresee a gun culture of over 300 milllion guns in the hands of ordinary citizens and the daily occurrence of multiple murders in the inner city and elsewhere. And yet all attempts to enact gun-control laws are not only resisted by gun lobbies, but even those who favor such laws feel the necessity to declare their support for the Second Amendment—as if the Amendment does not itself require amendment. The anti-gun control advocates may in fact be right that the reforms that have been proposed may do little to diminish violence. What is needed then, short of a constitutional amendment almost impossible to achieve, is the enactment of very strong laws that would reduce the number of guns in circulation. Such laws would doubtless be found to be unconstitutional by originalists on the court. To be sure, laws themselves cannot legislate a culture; for laws to be effective our gun culture would have to change; such change, if it is to occur, will not be helped by piety about the Second Amendment.

The Constitution was a compromise. Its very conception is informed by compromise, for instance, in its establishment of three branches of government and a bicameral legislature. In working together the various branches are required of necessity to negotiate and conciliate their differences. The failure to do so is dysfunctional government. We know too well what that looks like. The originalist view of the Constitution is uncompromising, very much contrary to its spirit. What it declares in effect is that the past (what reasonable people understood the Constitution to mean at the time of its framing) has almost absolute authority over the present (what reasonable people now understand the Constitution to mean). Shouldn’t the principle of compromise apply to the relations between past and present? The originalist will doubtless disagree with this characterization and point to the amendment process; but if the process is so onerous, requiring as it does supermajority support at every level of government, the Constitution as interpreted by originalists becomes an intransigent, immovable, and undemocratic force blocking all movement for change—in contradiction to the democratic spirit of compromise that went into its making.

Originally published in Society, Volume 50 November/December 2013.