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"Scalia's Infidelity" Paper and Webcast:
This afternoon, I am giving the William Howard Taft Lecture at the University of Cincinnati Law School. I take as my subject, Justice Scalia's 1988 Taft Lecture, "Originalism: The Lesser Evil," in which he describes himself as a "faint-hearted originalist." The title of my talk is "Scalia's Infidelity: A Critique of Faint-Hearted Originalism." You can watch a live webcast of the lecture here and download the paper on which it is based here. This is the abstract:
In this essay, based on the 2006 William Howard Traft lecture, I critically evaluate Justice Antonin Scalia's famous and influencial 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as "faint-hearted originalism," I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the "underlying principles approach" - and why originalism, properly understood, does not lead to the types of grossly objectionable results that leads Justice Scalia to be faint of heart.

Update: Apparently the live webcast has been cancelled. Perhaps an archived webcast will be uploaded later, as with previous lectures.

cld:
I just looked at the link you gave us for the webcast and on that page it says that the webcast is cancelled. I am not sure if this will change when your presentation begins but I thought I would let you know.

Thanks and good luck today.
2.2.2006 10:22am
SimonD (www):
Evidently, Randy's still mad at Scalia for voting against him in <i>Raich</i>...;)
2.2.2006 10:32am
JMW:
"Originalism: The Lessor Evil." Uh, I didn't know Nino was a big fan of home ownership.
2.2.2006 10:32am
Randy Barnett (mail) (www):
Thanks for the info on the webcast. I have updated the post, and changed the second reference to "lessor" to "lesser."
2.2.2006 11:05am
Anderson (mail) (www):
Uh, I didn't know Nino was a big fan of home ownership.

All the Founders owned their own homes!
2.2.2006 11:17am
Zywicki (mail):
Randy:
I haven't read the paper, so forgive me if you address this there. But my impression is that Scalia's originalism today is fundamentally different from Scalia's originalism then. "Originalism: The Lesser Evil" seems less principled than pragmatic--i.e., in 1988 Scalia's primary goal was to restrain judicial activism, and originalism was seen primarily as a means to that end.

Since then I see a change in Scalia's jurisprudence--originalism is mandated by constitutional principle (essentially social contract theory) rather than prudential (a means to judicial restraint). I think he saw the pragmatic approach of "Originalism: The Lesser Evil" to be intellectually indefensible. In this sense it also consistent with his views on statutory interpretation.

So I see the two approaches as fundamentally discontinuous. It sounds as if you see the approach of his Taft lecture and his current approach to be largely continuous.

It is pretty cool to be responding to Scalia's Taft Lecture in another Taft Lecture!
2.2.2006 11:28am
Justin (mail):
I absolutely agree with Randy Barnett. I agree with Todd Zywecki if I am allowed to make the usual change I make when hearing the term "judicial activism."

Randy:
I haven't read the paper, so forgive me if you address this there. But my impression is that Scalia's originalism today is fundamentally different from Scalia's originalism then. "Originalism: The Lesser Evil" seems less principled than pragmatic--i.e., in 1988 Scalia's primary goal was to restrain results he didn't like, and originalism was seen primarily as a means to that end.
2.2.2006 11:40am
David M. Nieporent (www):
Randy, as long as you're correcting typos...
In this essay, based on the 2006 William Howard Traft lecture
2.2.2006 11:47am
Mr. Xanthippe:
I've always thought of Scalia primarily as a textualist with a bit of originalism and pragmatism thrown in. Because of the way he ruled in Raich, I can't help but wonder if his jurisprudence was marred by opportunism, i.e., perhaps he was influenced by the thought that if he had voted against the Bush administration in Raich, it would've jeopardized any chance he might have had to be nominated to be Chief.
2.2.2006 12:13pm
Squire (mail) (www):
Nice articles..
2.2.2006 12:41pm
Donald (www):
For what it's worth: as a UC Law alum (2003) and a Cincinnati resident, I hope you enjoy your brief trip here. Welcome to Cincinnati and to UC!
2.2.2006 12:57pm
Alfalfa Male:
It is an interesting article and I enjoyed it.

I fail to see how Thomas's dissent in Kelo shows him to be a true originalist. He talks a lot about the "original meaning" of the 5th Amendment, but I would argue that a true originalist would recognize that the original meaning of the 5th Amendment was to restrain the NATIONAL government. (A truel originalist should also reject the 14th Amend. incorporation doctrine.) Kelo should have remained a state issue.

Nonetheless, I agree that Thomas is more of an originalist than Scalia.
2.2.2006 1:16pm
SimonD (www):
I don't have the time to write a full-fleged rebuttal, but there are a few points that I absolutely cannot avoid making. Where to start. Obviously, the first thing to say would be that I continue to appreciate and to enjoy reading Randy's work, and I think he's provided some absolutely invaluable firepower to originalists.

None-the-less, I find this work - which I think needs to be taken with his recent essay on the Ninth Amendment - less than convincing, and essentially, a continuing fit of pique that Justice Scalia had the temerity to vote against him in Raich. I would have given Randy an extra vote in Raich, joining Justice Thomas' opinion, but the suddenly fashionable Ninobashing is undignified and unwarranted, particularly in light of the thin reed on which it rests. Randy is good enough to note that in that case, Scalia "stressed his reliance on the Necessary and Proper Clause" (page 9); while this is evident enough from simply reading the case, the admission of it is fatal to the "let's get together and bash Nino" tendancy. I don't agree with Scalia's opinion in Raich, but it isn't an absurd result, and makes a far better case for itself than the majority opinion. The far more damning thing about the Raich opinion, it seems to me, is (and again, Randy adds this to his comments) Scalia's failure to confront Thomas' dissent. I doubt he would have convinced Randy or I of his case, but it might have taken the edge off a level of criticism which bears seemingly no relation to what was actually said.

This is not to say that Scalia is ever above reproach or criticism; I would think that the single most damning piece of evidence not cited - that is to say, the Scalia opinion that I find most indefensibly at variance with his own theory, and the case that best showcases his being faint-of-heart - is Green v. Bock Laundry Machine Co. I cringe reading that opinion. Now, you might argue that Green is textualism, and Randy's essay is about originalism, but in my view, originalism is little more (or less) than a lens that one fits over textualism to account for the passage of time; that is, it is a logical consequence of the philosophical underpinnings that lead one to textualism, combined with the awareness that time changes language. That is, originalism, as I see it, is not a tool to evaluate the constitution; one would as readily use textualism to interpret a constitutional amendment as one would use to evaluate a statute passed in 1812. Given that Randy explicitly advances theories of unenumerated rights, here and elsewhere, is he really advocating originalism without textualism?

I also continue to think - recalling Clayton Cramer's comment a while back that Randy seems to operate under the presumption that the Framers were liberatarians - that it's at least passingly ironic that Randy accused Justice Scalia of bending originalism to suit his preferred outcome while writing works that esssentially discover that - boy! What d'you know! - the mandates of the Constitution actually dovetail very nicely with Randy's normative libertarian preferences. That is, that the Constitution is essentially designed to stop government doing anything to anyone, and in the absence of an actual limitation, the Ninth Amendment will take care of that. When someone's judicial philosophy seems suspiciously supportive of their normative preferences, it is begging the question. I suppose that one could accuse me of the same thing, insofar as my normative preference on abortion is pro-life, and I there is no Federal power to regulate abortion, forcing me to concur with the Ninth Circuit's ruling this week.Rather less convenient for me. Likwise, some no doubt disparage Scalia's Raich concurrence as showing his normative support for police antidrug enforcement; for such critics, Kyllo must be a difficult pill to swallow.

This is considerably more galling than it might otherwise be (which is why I'm adding these comments now, and not when Randy posted his last essay) when propounded in an essay attacking Justice Scalia for precisely the same thing — declaring Scalia a non-originalist, no less, but be careful running with that tar and those feathers.

Lastly, a few words must be said on the Ninth Amendment. It's difficult to describe fully how disappointing it is to be confronted (page 6), yet again, by the certainly self-satisfying but ultimately majestically circular assertion that:
[A]ll unenumerated rights become judicially unenforceable, which certainly results in them being "disparaged" or "denied"—exactly how the Ninth Amendment says the Constitution is not to be construed.
This argument - which one sees so often that it has lost its humorous effect - says little more than this: "the ninth amendment protects unenumerated rights, so if you offer an interpretation of the Ninth Amendment which does not protect unenumerated rights, you're violating the terms of the ninth amendment"; a more honest way to say the same thing would be "if you don't agree with my interpretation of the Ninth Amendment, you're biolating the Ninth Amendment's own terms", but that would be too transparently circular, perhaps. One can only disparage the rights reserved by the Ninth Amendment [by offering an alternate theory] if one has first bought into the notion that the Ninth Amendment protects those rights. I disagree. I think that the Ninth Amendment makes it clear that the Constitution is not the source of all rights, and nor is it designed as the first and last line of defense of our rights; it leaves all those rights and powers materially unaffected by the Constitution in the balance that existed in the status quo ante, and thus, if I wanted to use the same circular reasoning, I could suggest that saying the Ninth Amendment protects unenumerated rights disparages the power of the people to delegate power to the states, and thus that argument disparages the rights...
2.2.2006 1:49pm
Challenge:
Funny but I thought it was possible to be an originalist in good standing AND occasionally follow precedent.
2.2.2006 2:01pm
Bruce Wilder (www):
A core issue with all conservative theories of constitutional interpretation appears to be the meaning and effect of the 14th Amendment. Why not address the 14th amendment directly?

A lot of conservatives, including Scalia, Thomas and Alito, would prefer that the other side had won the Civil War, and one, more or all of the 14th amendment's provisions did not exist. But, it is there. What pisses Scalia off is that the 14th Amendment, which assigns power to Congress to police the behavior of the States, has been used by the Courts to police the behavior of the States. Why not focus on that issue?

Personally, I think it ridiculous to be rooting around for some scant evidence that the "original public meaning" of the 14th amendment encompassed school desegregation one way or another, but lawyers were doing that prior to Brown. It is equally ridiculous, imo, to suppose that the 14th amendment was not intended to require the States to abide by a one-man/one-vote rule, even though the rule in the text of the amendment is not one-man/one-vote, but, rather, a wholly impractical kludge.

The real issue is not constitutional interpretation, as a general matter, but the specific problems posed by the 14th amendment. Classifying "jurisprudence" on the basis of attitude toward the 14th amendment might be more revealing that bandying about rhetorical catch phrases, regarding "original intent" and "judicial activism".
2.2.2006 2:04pm
Marcus1 (mail) (www):
Just read your article, Randy, Scalia's infidelity.

I have a question and a comment.

Question: Is it your view then that the Due Process clause should be applied by the Court as a broad restriction on Congressional action, based on the meaning of "liberty" today? I'm not familiar with all your writings, but that's what I get from the end, discussing the "generality in which the Constitution is objectively expressed."

Comments: Kelo seems like a funny example. My guess is that Scalia didn't join Thomas there because even though Thomas claimed to be using an originalist approach, the manufacture of the "public use requirement" from that text is entirely un-originalist in the first place. Isn't this the kind of interpretation from underlying principles that you criticize?
2.2.2006 2:05pm
John Herbison (mail):
Scalia? Originalist? Bush v. Gore, anyone?
2.2.2006 2:51pm
SimonD (www):
Bruce:
A lot of conservatives, including Scalia, Thomas and Alito, would prefer that the other side had won the Civil War, and one, more or all of the 14th amendment's provisions did not exist. But, it is there. What pisses Scalia off is that the 14th Amendment, which assigns power to Congress to police the behavior of the States, has been used by the Courts to police the behavior of the States.
This is actually one of the most ludicrous things I've ever read on Volokh. First, let's see your evidence that Scalia and Thomas - still less Alito - would prefer the South to have won the civil war, or that they would prefer that the Fourteenth Amendment had not been enacted. Second, what possible basis do you offer for your contention that "[w]hat pisses Scalia off is that the 14th Amendment, which assigns power to Congress to police the behavior of the States, has been used by the Courts to police the behavior of the States"? This is an absurd contention, one that hinges on the utterly spurious premise that because Scalia and Thomas does not agree with you on precisely what substantive limits the Fourteenth Amendment places on the states, and what positive grants of authority it consequentially makes to Congress in §5, that they "obviously" regret the passage of the Fourteenth Amendment. This contention is so clearly rejected by as much as a passing glance at what either has actually written on related subjects.

Disagreement on what the Fourteenth Amendment means - like disagreement over what the Ninth Amendment means - is not the same thing as suggesting that it is doesn't have a meaning, and it certainly isn't enough to start throwing around suggestions that people you don't agree with are closet Confederates out to win one for the South.
2.2.2006 2:54pm
Challenge:
Bush v. Gore, anyone?

The Rehnquist concurrence wasn't so bad, and I suspect those three only signed onto the EPC argument because they had to.
2.2.2006 2:57pm
Scott Scheule (mail) (www):
I think the critique quite good, but I remain skeptical of Justice Thomas's Kelo dissent, and sincerely wish that originalists would find a stronger opinion when applauding the Justice, and denigrating Justice Scalia. I admit to being quite fond of Justice Thomas, but it's still difficult for me to see the Kelo dissent as anything but a veritable wrenching of the text of the Fifth Amendment.

That said, it is perhaps nonetheless a valid charge that Justice Scalia should have addressed the Thomas dissent, its shaky originalism notwithstanding. Indeed, perhaps Scalia's worst offense in that case was joining a thoroughly unimpressive O'Connor dissent, which lacked a basis not only in the Fifth Amendment (originally understood or otherwise) but also, so far as I can tell, anywhere in the vast realm of law itself.
2.2.2006 2:58pm
SimonD (www):
Marcus - as I understand it, Randy's argument is that substantive due process is unnecessary, because the Ninth Amendment protects various unenumerated rights. Personally, I don't find his argument for how to discover what they are, though, nearly as convincing as J.R. Droddy's in Originalist justification and the methodology of unenumerated rights - and I wasn't sold on that, either.

John - it bears noting that Scalia did not write in Bush. I agree that Kennedy's per curiam was exactly the sort of squishy nonsense Scalia has argued against many times, so I would have preferred that he had either written himself, or at least joined only Rehnquist's concurrence and not the majority opinion. However, I suspect there were strong practical reasons for having not a plurality, but a full-fledged majority opinion, and it might have been the case that - since O'Connor and Kennedy wouldn't join Rehnquist's opinion - had Scalia and Thomas not swallowed hard and joined Kennedy's opinion, that the court's liberals might have prevailed. In the circumstances, tactical voting might seem pretty indefensible, still, but at least understandable.
2.2.2006 3:03pm
Challenge:
A little note on the Raich nonsense: Even Robert Bork conceded to the judiciary committee the "irreversible" commerce clause precedent expanding congressional power beyond its original meaning.

The best we can hope for is trimming of that power ever so slightly or stopping new encroachments (what Lopez and Morrison did). It's quite a different thing to undermine a long-existing and popular program--the war on drugs.

I disagree with Barnett on the Ninth Amendment--I think he's 100% wrong. But I wouldn't say he isn't an originalist just because I think he's wrong. Why can't Barnett accept Scalia's views in the same way?
2.2.2006 3:13pm
SimonD (www):
A little note on the Raich nonsense: Even Robert Bork conceded to the judiciary committee the "irreversible" commerce clause precedent expanding congressional power beyond its original meaning.
I don't think that's entirley correct; I think the brakes can still be re-applied, and I think Bob Bork would readily agree that even if the enterprise can't be thrown directly into reverse, it can be brought to a halt. In any instance, though, I think it's important to confront Scalia's concurrence in Raich on what it actually says, which is not at all what it has been characterized as saying, it seems to me. As I read that concurrence, Scalia doesn't argue that the commerce clause permits the states to regulate purely intrastate commerce, but rather, the entirely different proposition that the necessary and proper clause permits Congress to pass regulations that are necessary to make an interstate regulatory scheme work.

For example, if you belong to a law school, and you have a University homepage through which you intend to sell motivational posters of Justice Brennan to your fellow students, and that page is not advertised anywhere such that only people in your class know it exists, (first amendment issues aside) can Congress regulate that webpage? It's purely intrastate activity, after all. But - so Scalia's argument in Raich goes - it is a heartbeat from being interstate, because even if nobody knows your little web page is there, they CAN get there, so if Congress wanted to control the interstate market in posters of Bill Brennan, they could legitimately regulate your purely intrastate website.

In Raich, the argument from Scalia went like this: if Congress has power to enact the CSA, it has the power to enact regulations that are necessary and proper to make that legislation work. If you grow and distribute a controlled substance, even if you only to sell it to your intrastate friends, it is so obviously plausible for it to end up in the interstate market that it is possible for Congress to legislate to bar you from growing and distributing it.

This isn't, I will readily agree, the strongest argument of Nino's career. But it's a heck of a lot stronger than the argument he is ususally caricatured as having put forth.
2.2.2006 3:34pm
SimonD (www):
I'm sorry, I messed up the link tags in my second post. That was supposed to read:
I suppose that one could accuse me of the same thing, insofar as my normative preference on abortion is pro-life, and I don't think there is a constitutional right to an abortion. How convenient for me! But by the same token, I also think that there is no Federal power to regulate abortion, forcing me to concur in the judgement of the Ninth Circuit's ruling in Planned Parenthood v. Gonzales this week. Less convenient for me..
2.2.2006 3:40pm
Medis:
Challenge,

I'm not sure I followed your reasoning about Raich. There was not a case directly on point, and even Wickard was distinguishable given that Raich was an as-applied challenge, and the facts and record in the Wickard and Raich were distinct.

So, it seems you are saying that because the drug enforcement program had been around for a long time and is (purportedly) popular, that alone should bind the hands of the Court, even if the legal precedents do not. I don't see that being the sort of reasoning an originalist is likely to endorse.
2.2.2006 3:46pm
Challenge:
"I don't see that being the sort of reasoning an originalist is likely to endorse."

I don't think you've been listening to what they've been saying. Read A Matter of Interpretation or review Bork's statements about the Commerce Clause. Originalism, in its purest form, would not be practical. Every constitutional philosophy tempers itself with the pragmatic principle of stare decisis, and originalism is no different. If Barnett is willing to say stare decisis should be abandoned, well, he's in a distinct minority.
2.2.2006 3:57pm
VC Reader:

A lot of conservatives, including Scalia, Thomas and Alito, would prefer that the other side had won the Civil War, and one, more or all of the 14th amendment's provisions did not exist.

Out and out lie. You have nothing to base this statement on. It is so far from the truth that I am amazed that you were willing to post it even with the cloak of anonymity provided by the internet.
2.2.2006 4:04pm
Medis:
SimonD,

Of course, Scalia's analytic path in Raich, as you describe it, is precisely what makes his concurrence so sweeping. There is always going to be some sort of interstate "market" for any sort of commodity, service, information, or so on. So, given Scalia's analysis in Raich, Congress has a road map for national police powers: it just has to declare an interest in the inevitable interstate market for X, and then it can reach all intrastate activity involving X without a further showing.
2.2.2006 4:04pm
Challenge:
"Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accomdoate the doctrine of stare decisis; it cannot remake the world anew. It is of no more consequence at this point wehther the Alien and Sedition Acts of 1798 were in accord with the original undertanding of the First Amendment that it is whether Marbury v. Madison was decided correctly. Where originalism will make a differnce is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpations of new ones. My fidelity to the methodology should be judged, not by the First Amendment cases Professor Tribe selects, but by cases discovering a novel constitutional right against statewide laws denying special protections to homsexuals, a noverl constitutional right against excessive jury awards, a novel constitutional right against being excluded from governmetn contracts because of party affiliation, a novel constitutional prohibition of single-sex state schools, and a novel constitutional approval of federal appellate review of jury verdicts.

Professor Tribe appears to believe that htere is somethign uniquely inappropriate about the accpetance of stare decisis by an originalist. Surely not...."

A Matter of Interpretation, page 139

Justice Scalia
2.2.2006 4:04pm
SimonD (www):
Challenge-
I don't think even Randy would go quite that far, because there is sometimes a grey area created by originalism: what happens when the original understanding of a term lends itself to two or more different, equally-valid constructions, one of which favors one litigant, another favoring the other?

Lee Strang has a couple of interesting papers about underdeterminacy, and his argument is essentially (as I understand it) that when the original meaning is underdeterminative, courts cannot strike down legislation; that is, a positive, clear command is necessary, and otherwise, courts should defer to the interpretation of the democratic branches. I wouldn't go that far even absent stare decisis, but I think stare decisis can be very important in cases of underdeterminacy; in my view, a case should be upheld (even if it is, as Bork suggests, limited in its reach), even if the reasoning is non-originalist, providing some originalist explanation can support the result; stare decisis can also (contra Strang) in my view tell us which of two coequally valid interpretations of the original meaning should stand.

The big problem for originalism and stare decisis right now, in my view, is that originalism HAS to provide an internally coherent account of the role of stare decisis and what originalists should do with it, and Randy is absolutely right, as is Strang, in suggesting that Justice Scalia has failed to produce one. You can go down the Thomas route, and reject it entirely where it's at variance with the original understanding, but if an originalist is going to embrace stare decisis, it seems to me, they have to have an articulated view of when it's relevant, how far it goes, and how it's applied. If not, there's always the risk - and as much as I respect and admire Scalia, he leaves himself wide open to this - that you'll be accused of picking and choosing, of following stare decisis when it suits you. I don't think Randy's criticisms of Scalia are warranted, but I do think Scalia (or anyone for that matter) needs to sit down and hammer out a genuinely compelling and clear argument suggesting how originlists should reconcile stare decisis against the text. I'd do it myself, but I doubt anyone would take me seriously. ;)
2.2.2006 4:09pm
Medis:
Challenge,

But that is precisely my point. If the Court's prior cases dictated a certain result, then stare decisis considerations would be applicable.

Conversely, however, the mere fact the government has had a program in place for a long time doesn't make the legality of that program a matter of stare decisis. Moreover, it is again important to note that this was an as-applied challenge, so the entire program was not at stake.

So, your citations about stare decisis are inapposite.
2.2.2006 4:10pm
Challenge:
Medis, simply saying stare decisis was irrelevant in Raich doesn't make it so. Just because the Court hadn't explicitly dealt with that specific issue (and maybe they had, I dont' know) means little.

I think one can come to the conclusion that Randy does, and I think Scalia's (based on a deference to precedent on the commerce clause) is defensible as well. While it's true that the result isn't consistent with pure originalism, not every case can be.
2.2.2006 4:15pm
SimonD (www):
There is always going to be some sort of interstate "market" for any sort of commodity, service, information, or so on. So, given Scalia's analysis in Raich, Congress has a road map for national police powers: it just has to declare an interest in the inevitable interstate market for X, and then it can reach all intrastate activity involving X without a further showing.
Not so, I think, because I think that the reach of Congressional power under the commerce clause is very much more limited under the original understanding of the commerce clause than Congress thinks it is (see Thomas' Lopez concurrence), and to some extent, I would go further than Scalia or Bork: I think the court SHOULD, by one means or another, throw the expansion of Federal power under the commerce clause into reverse, incrementally if necessary. That is to say, the necessary and proper clause is only really a blank cheque, it seems to me, if one accepts the highly latitudinarian view of Congressional power under the commerce clause.

I find myself in the uncomfortable position of defending a concurrence that I don't, in fact, agree with. I would have joined Justice Thomas' opinion. My defense of Scalia's Raich opinion extends only to the point that a) it should be attacked on its own merits and b) it is nowhere near the act or heresy that many have suggested.
2.2.2006 4:15pm
Nunzio (mail):
Medis,

I think you hit on a good point there. But maybe because the CSA is such a comprehensive regulation of narcotics and the pot possession prohibition was part of that comprehensive statute, the necessary and proper auxiliary power is more of a direct fit.

Then, again, it also leads to the plausible view that Congress can just say we're regulating the entire interstate market for goods and services and then pass a law they think is necessary and proper to regulate at this most general levelz;

"Banning partial-birth abortion is necessary and proper to regulating the interstate market for goods and services because the money that would be spent on this procedure will instead be either (1) put in an account at a bank that can use the money for interstate loans or (2) spent on cigarettes, candy bars, compact discs, I-Pods or countless other devices that have travelled in interstate commerce."
2.2.2006 4:16pm
minnie:
I am not a lawyer but having recently read extensively about the various theories of constitutional interpretation, including active liberty, judicial activism, strict constructionist, originalism, etc., I have come to the only conclusion that I believe is consistent with both logic and justice.

If you view the Constitution as an outer garment, and the Declaration of Independence as the undergarment, then the proper interpretation of the Constitution is going to be one which goes far to protect unenumerated rights, or "transcendent" inalienable rights. When the "democracy" aspect of our government (majority rule) clashes with the properly interpreted Constitutional aspect of our government (people have certain inalienable rights that are not spelled out in the Constitution despite what Simon seems to think), justice is served by ruling in ways which strike down laws which violate those fundamental rights. In my opinion, this would qualify both as originalism and judicial activism. I think it is what the framers intended. Janice Rogers Brown is someone who, imo, would embody this view of what I call "originalist judicial activism." Her dissent in "People vs. McKay" is one of the great dissents, imo, and everyone should read it.

So when they tell you on the first day of law school that "you are not here to learn about justice, you are here to learn the law", I think they should check their premises. All unjust laws are, imo, unconstitutional.

Although Justice Thomas is my favorite sitting Justice, I personally think there are times when he should stretch that ten feet of rope to twenty, and practice what Randy calls "original public meaning originalism."

Of course, everything comes down in the end to interpretation. I like Randy's view of things.
2.2.2006 4:22pm
AlexM:

A lot of conservatives, including Scalia, Thomas and Alito, would prefer that the other side had won the Civil War


So one night Clarence Thomas and Nathan Bedford Forrest walk into a bar. Thomas looks at Forrest's sweater and says, "Is this a Turtledove?"

[ducks and covers]
2.2.2006 4:30pm
Medis:
Challenge,

Honestly, I just am trying to understand your argument. If your argument is that Scalia was bound by stare decisis in Raich, fine--but then you have to cite the relevant cases.

However, in your original post, you didn't cite any cases. Rather, you cited the long-standing and (purportedly) popular government program. My point is simply that "stare decisis" does not attach to something like that. And I really wonder whether whatever you had in mind by citing this program (as opposed to a case) is plausibly consistent with "originalism" even as modified by stare decisis.

SimonD,

Of course, it is not really fair to ask you to "defend" Scalia's concurrence. But I do think you have a problem on your point (b). The bottomline is that without some sort of additional limit on what "interstate" markets Congress can regulated (and there is none in evidence given Scalia's analysis), Scalia's theory places no practical limits on the Commerce Clause as modified by the Necessary and Proper Clause. Whether you want to call that "heresy" is a question of semantics.

Nunzio,

That is indeed a greater problem. Ultimately, all "markets" are going to have some interrelation, and the precise problem with Scalia's concurrence is that it does not seem to put any burden on Congress to establish a "substantial" interrelation.
2.2.2006 4:49pm
Challenge:
"Honestly, I just am trying to understand your argument. If your argument is that Scalia was bound by stare decisis in Raich, fine--but then you have to cite the relevant cases.

However, in your original post, you didn't cite any cases. Rather, you cited the long-standing and (purportedly) popular government program. My point is simply that "stare decisis" does not attach to something like that. And I really wonder whether whatever you had in mind by citing this program (as opposed to a case) is plausibly consistent with "originalism" even as modified by stare decisis."

I think the onus is on you to differentiate the case sufficiently enough to say that the body of commerce claus juriprudence does not apply. Of course a case can always be distinguished in some way, but why was Raich meaninfully different than other commerce clause case? You're clearly smart enough to understand this, but you seem more interested in arguing than anything else.
2.2.2006 5:26pm
Justin (mail):
I disagree with Challenge's statement that: Every constitutional philosophy tempers itself with the pragmatic principle of stare decisis, and originalism is no different.

First of all, stare decisis has independant merit of its own, but that's not really the point.

The reason why originalism needs stare decisis - what Scalia and Barnett are talking about - is simply that the United States as a people would simply reject originalism in its pure form. The end result of "pure originalism" would not be an extreme form of the Constitution, but simply the calling of a new Constitutional Convention (like what France does every so often).

Unfortunately for Scalia (and Barnett), the end result of that would likely be a Constitution giving the government sweeping powers subject to modern concepts of justice and equality, as well as substantially weakening the powers of states both vis a vis Congress and individuals, particularly in regards to Sov. Immunity. Souter's structural pragmatism doesn't need that, and Breyer's structural intentionalism generally fails to get a majority when it deviates from unacceptable norms.

I mean, other than my fear of the people currently in power, I wouldn't be horribly disgusted by that result, which is why I admire Thomas despite finding him an extremist - if that's what happens, so be it, because the process is more important than the result.

But what Scalia is doing is different. What Scalia ends up doing is envisioning a bunch of Scalia-loving founders, and then reading the text as if THEY were the ones who wrote the Constitution for modern times. These Scalia-loving founders would have envisioned the regulatory state, so it's Constitutional, but they would have made sure it wasn't too anti-Business. Scalia tempers his philosophy not as a natural part of his jurisprudence but in order to a) read his preferred view of the Constititution and statutes into the law, and b) to disguise the extremity of the (just for lack of a better term) CiE movement.
2.2.2006 5:37pm
Tyrone Slothrop (mail):
If there is a decision in which Justice Scalia has applied the Fourteenth Amendment in a plausibly originalist way, could someone point me to it? If there isn't, could someone who defends him explain why not?
2.2.2006 5:37pm
CJColucci (mail):
Justin's point is one too often neglected. If the Supreme Court started ruling that "commerce" doesn't cover manufacturing, that nothing empowers the federal government to regulate pollution dumped into the air from a single-state point source, and so on, Constitution-sized majorities would enact a Constitution that did -- and probably would add national power to regulate marriage and divorce, plenary police power, and the like. The purist might reply, "well, make them do it if that's what they want," and that is certainly intellectually tidier to make them jump through the hoops, but given that Constitution-sized majorities like things the way they are, for whom is this battle between seminar-room warriors being fought?
2.2.2006 6:18pm
Arik (mail):
It is touching to see so many people come up with convoluted explanations that deny the obvious:

Judges always use the arguments that lead to the results their personal/political tastes dictate, those being massively influenced by the zeitgeist.


The *only* thing that changed between 1896 and 1954 where certain attitudes towards African-Americans, particularly in the East Coast academic milieu.
2.2.2006 6:54pm
laboringundertheyoke:
Nice bio on the CLS website. But ... You must reveal what you talked about on the Ricki Lake show!

Nice articles, Randy.
2.2.2006 8:43pm
Medis:
Challenge,

As an aside, it is hard for me to know what cases you think Scalia would need to distinguish unless you name them.

Anyway, as I implied before, in my view Wickard is the key case that would need to be distinguished. The principal dissent addresses this issue specifically, and I think adequately. So, perhaps you can explain why the principal dissent was wrong.
2.2.2006 11:38pm
Marcus1 (mail) (www):
More general comment/criticisms re: Scalia's Infidelity, if I may. I would reduce the argument as follows:

1. An oral constitution would be bad because it could be abused.
2. Our Constitution was written in opposition to the idea of an oral constitution, as is proven by the fact that we wrote it.
3. Originalism is even more written than other types of interpretation, so that makes it the best.

My questions/criticisms:
1. Isn't that rather funny proof of point three?
2. Couldn't there be a point of diminishing returns?
3. Isn't it possible that Judges, by their nature and the way they are selected, will actually protect liberty more through a broader judicial philosophy than through strict originalism?
2.3.2006 12:02am