Original Sin? Why a Prescription of Originalism...

as a Judicial Cure-All Falls Short of the Promised Remedy

By Benjamin P. Pomerance
Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.
Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project. He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication. Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter.
One more thing, he just organized an extraordinary symposium for the Law Review on Free Speech. It is no exaggeration that Ben planned and executed one of the very best events in my 22 years at Albany Law School.

Ben's essay is the third in the series on judicial restraint prepared in the Judicial Process Seminar, fall 2012.

What can judges do, and when can they do it? At the heart of every debate about originalism, textualism, strict construction, moralism, and the existence of a so-called “living constitution” lies this fundamental question.  The articles by Justice Scalia[1] and Justice Rehnquist[2] answer this question by a narrowly construed response, one that they agree is not perfect, but is the better of two potential evils.

            For proponents of originalism, the specter haunting the courtroom is the slippery slope.  Rehnquist attacks this issue in his criticism of the anonymous brief writer’s appeal to the Court;[3] Scalia—who is clearly more of an “originalist” than Rehnquist, at least in theory—does so in his critiques of the comments by Owen Fiss,[4] Ronald Dworkin,[5] and others.[6]  The originalist’s argument essentially goes like this: once you open the door to a broad interpretation of the Constitution, one that focuses more on contemporary values than the original language and intent of the document, chaos and confusion will ultimately ensue.  In Scalia’s words, it would turn the Constitution into “a novel invitation to apply current societal values”[7]—a concept that, according to the strictest advocates for originalism, is foreign to the founding principles of America’s judiciary.[8] 

            In general, proponents of originalism—exemplified here by Scalia—defend their perspective on judging by using three basic lines of attack:

The Constitution Itself Demands An Originalist Approach.  Scalia (and, to a much more limited extent, Rehnquist) both argue that anything other than an originalist perspective will result in the courts overstepping their constitutionally assigned boundaries.[9]  Congress and the Executive branch, not the courts, are the places to appeal a social problem on moral and ideological grounds.[10]  Before the judge’s bench, the law is all that matters.  Those who do not like the outcome of a particular provision of the Constitution retain the right to petition Congress to pass a constitutional amendment, but such constitutional changes are not for judges to create.  As Rehnquist put it: “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”[11]

    Anything Other Than True Originalism Is Too Malleable.  Allowing personal sympathies, ideals, and thoughts about modern morality to supersede the original intent of the Framers can create a society where federal judges are able to impose their will upon the nation.[12]  For instance, there is no precise way to know when something truly is “implicit in the concept of ordered liberty,” the test spelled out by Justice Cardozo in Palko v. Connecticut.[13]  Justice Frankfurter later defined those essential freedoms as rights that, if denied, would “shock the conscience,”[14] but this, too, leaves us without a clear determinant of when a given action crosses the line of constitutionality.[15]  What might shock the conscience of one judge could seem completely within bounds for another judge, leaving the nation with no true guidance as to the state of its laws.  This is precisely what Scalia wrings his hands about when he denounces the idea of federal judges using “fundamental values” in place of the Constitution’s original meanings.[16]         

Originalism Isn’t Perfect . . . But Nothing Else Is Better.  In the end, many originalist arguments seem to conclude with this thought.[17]  Scalia appropriately acknowledges the existence of “warts” in the application of textualism to real-life federal judging.[18]  Yet he quickly turns back to his argument that non-originalism provides more problems than its counterpart.[19]  Relying too heavily on the original meaning of the Constitution, he asserts, is better than not depending enough on the words and intentions of the Framers.[20]  Replacing the original meaning is fraught with greater legal peril than trying to ascertain what the “original meaning” truly means.[21]

            All three of these arguments are persuasive ones, particularly when delivered through the eloquent prose of judges like Scalia.  However, it seems that in certain areas, Scalia does not paint a practical picture of originalism—or at least the real-life application of originalism—in the judicial system.  These arguments define a lovely ideal, but all of them can be weakened by evidence of how originalism can be just as awkward as the theories that Scalia denounces.         

            The greatest problem, which Scalia willingly points out, is nobody today was around when the Constitution was debated, drafted, revised, and ultimately adopted.  Nobody can define with complete certainty the original intent of the Framers in every portion of the Constitution.[22]  Even the greatest constitutional historians debate the meanings of various provisions of the Constitution, trying in vain to decipher just what the Framers thought and intended when they created this document.  Therefore, judges who are “originalists” still are not automatons.[23]  Rehnquist, whose article is far more realistic than Scalia’s, notes that the Supreme Court has gone beyond the strict confines of constitutional language and intent on various occasions, from Dred Scott v. Sanford[24] to Lochner v. New York[25] and beyond.[26]  The key, Rehnquist argues, is to guard against going “beyond even a generously fair reading of the language and intent of (the Constitution)” in rendering a decision.[27]  Yet once again, we come to the question of when we know that the proverbial line in the sand has been crossed.  Knowing when a “generously fair reading” of the original document has occurred is every bit as elusive as understanding what is encompassed in the America’s “fundamental values.”  Both are subject to a tremendous spectrum of opinion, debate, and ambiguity.

            Thus, it is difficult to swallow Scalia’s claim that if we use principles of originalism, “for the vast majority of questions the answer is clear.”[28]  If this is true, then how can Scalia explain his surprisingly common divergences from the jurisprudence of Justice Clarence Thomas—who also claims to be an originalist[29]—in key constitutional areas such as the Commerce Clause[30] and the scope of First Amendment free speech protections?[31]  Is one justice is simply “more original” than the other, a better interpreter of what the Framers believed?  Doubtful.  Instead, it seems that this is living proof that the originalists are faced with the same basic problem with which non-originalists grapple: in the end, judging still comes down to a human being’s interpretation of the law.  Whether interpreting the original intent behind words written in 1787 or interpreting how those words fit into the changing values of modern times, there still are precious few situations where “the answer is clear.”[32]

            Another example of the invalidity of Scalia’s “clear answer” claim can be found in his voting record.[33]  Studies show that in cases where there is a staunch political divide, Scalia virtually always votes the way a typical partisan Republican politician would.[34]  Therefore, following Scalia’s logic, the “clear answer,” and the answer that the Framers of the Constitution would applaud, is virtually always the answer of a partisan Republican politician.  Again, this is difficult to accept as reality.  Democrats cannot always be adverse to the original intent of the Constitution, just as Republicans cannot possibly always be true to the original intentions of the Framers.  The only sensible realization from these unbalanced outcomes is that originalists like Scalia are just as susceptible to political pressures and personal values as any other judge can be.

            In the end, it is impossible for this observer to accept Scalia’s position that the “practical defects of originalism” are “less severe”[35] than the problems with non-originalism.  Instead, it seems that many of these “practical defects” are the same on both sides, despite Scalia’s vehement arguments to the contrary.  Both are highly subjective processes of reasoning, vulnerable to the personal beliefs of the individual judges, just as any decision by a court ultimately will be.  One school of thought is not blatantly worse than the other.  Scalia can claim that originalism is “the librarian who talks too softly,”[36] but when personal and partisan principles wind up at the core of interpretations labeled as “originalist,” it can speak quite loudly indeed.  What it says, for Scalia and for others who claim to doggedly adhere to originalism in their jurisprudence, can be quite unpleasant.

---

[1] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). 

[2] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).

[3] Id. at 695.

[4] Scalia, supra note 1, at 853 (criticizing Prof. Fiss for his statement that “the courts should give ‘concrete meaning and application’ to those values that ‘give our society an identity and inner coherence and its distinctive public morality”).

[5] Id. at 854 (objecting to Prof. Dworkin’s call for “a fusion of constitutional law and moral theory” in rendering judicial decisions).

[6] See id. at 853–54.  In these pages, Scalia also argues against “non-originalist” theories of judging put forth by Prof. Lawrence H. Tribe (“The Constitution . . . ‘invites us, and our judges, to expand on the . . . freedoms that are uniquely our heritage.”); Dean Paul Brest (“The practice of constitutional decisionmaking should enforce those, but only those, values that are fundamental to our society.); Prof. Richard Parker (“urg[ing], somewhat more specifically, that that constitutional law ‘take seriously and work from [while no doubt revising] the classical conception of a republic, including its elements of relative equality, mobilization of citizenry, and civic virtue’”); and Prof. David Richards (Who, according to Scalia, “suggests that it would be desirable for the courts’ constitutional decisions to follow the contractarian moral theory set forth in John Rawls’ treatise, A Theory of Justice.”). 

[7] Id. at 854. 

[8] See id.; see also Robert Bork, The Tempting of America: The Political Seduction of the Law (1997) (arguing that when a judge follows his or her moral standards rather than the Constitution as the Framers originally understood it, “a faint crack appears in the American foundation”); Randy Barnett, Restoring The Lost Constitution: The Presumption of Liberty (2003) (calling for constitutional interpretation based on its “original meaning”).

[9] See Scalia, supra note 1, at 860–63; Rehnquist, supra note 2, at 706 (objecting to members of the judiciary trying to make “an end run around popular government”).

[10] See Scalia, supra note 1, at 860–63; Rehnquist, supra note 2, at 706; see also Edwin Meese III, A Return to Constitutional Interpretation From Judicial Law-Making, 40 N.Y.L. Sch. L. Rev. 925, 926 (1996) (“When the federal judiciary honors the intent of the Framers and maintains its proper Constitutional role, the Legislative and Executive branches are free to promote civil rights or any other issue as they see fit.”).

[11] Rehnquist, supra note 2, at 700.

[12] See Scalia, supra note 1, at 854 (arguing that the Constitution is not “a novel invitation to apply current societal values”).

[13] Palko v. Connecticut, 302 U.S. 319, 325 (1937).

[14] Rochin v. California, 342 U.S. 165, 172 (1952).

[15] Indeed, this is the very argument made by Justice Hugo Black in opposition to Justice Frankfurter’s “shocks the conscience” test.  See Rochin, 342 U.S. at 175 (Black, J., concurring in judgment).

[16] Scalia, supra note 1, at 855 (“Are the ‘fundamental values’ that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mills, or Rawls, or perhaps from the latest Gallup poll?”).

[17] See, e.g., supra notes 9 & 10.

[18] Scalia, supra note 1, at 861.

[19] Id. at 863 (“It seems to me, moreover, that the practical defects of originalism are defects more appropriate for the task at hand—that is, less likely to aggravate the most significant weakness of the system of judicial review and more likely to produce results acceptable to all.”).

[20] See id.

[21] See id.

[22] Id. at 861, 863.

[23] Even Justice Scalia himself acknowledges this, noting that in certain areas of the law, he “may prove a faint-hearted originalist.”  Id. at 863. 

[24] Dred Scott v. Sanford, 60 U.S. 393 (1856).

[25] Lochner v. New York, 198 U.S. 45 (1905).

[26] Rehnquist, supra note 2, at 703. 

[27] Id. at 704.

[28] Scalia, supra note 1, at 863.

[29] See, e.g., Lee J. Strang, The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism, 88 U. Det. Mercy L. Rev. 873, 874 (2011).  

[30] See, e.g., Gonzalez v. Raich, 545 U.S. 1 (2005).  Justice Scalia wrote a concurring opinion that, leaning heavily on the Necessary and Proper Clause, concluded that the Commerce Clause enabled Congress to criminalize the production and use of home-grown marijuana.  Id. at 40–42 (Scalia, J., concurring in judgment).  Justice Thomas, on the other hand, determined that “Respondent’s local cultivation and consumption of marijuana is not ‘Commerce . . . among the several states.’”  Id. at 57–74 (Thomas, J., dissenting).  

[31] See, e.g., Brown v. Ent. Merchants Ass’n, 131 S.Ct. 2729 (2011).  Justice Scalia wrote the majority opinion for the Court, holding that a California statute prohibiting the sale of violent video games to minors violated the First Amendment right to freedom of speech.  Id. (slip op., at 18).  Justice Thomas, however, dissented, determining that “[t]he practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”  Id. (slip op., Thomas, J., dissenting, at 1) (emphasis added).

[32] Scalia, supra note 1, at 863.

[33] See Vincent M. Bonventre, Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus On Scalia—with graphs), N.Y. Court Watcher (May 1, 2012), http://www.newyorkcourtwatcher.com/2012/05/supreme-court-how-partisan-ideological.html.

[34] See id. (noting that in cases with highly charged political positions at issue, Justice Scalia voted the same way that a typical Republican politician would vote). 

[35] Scalia, supra note 1, at 863.

[36] Id. at 864.