by Matt Barr

Scalia evolved?

Via Hit & Run, we have a Pajama Guy demonstrating the the New York Times was getting it wrong in 1986, too:

I asked [Scalia at a law school speech] about how should we deal with ambiguity. He wanted an example. I brought up the Eighth Amendment ... To be honest, I can't recall how Scalia responded.

That summer, I followed Scalia's confirmation hearings with great interest. Then, on August 6, 1986, I read in The New York Times:

"When asked by Senator Biden whether he agreed with the view...that judges interpreting the Constitution should stick to the original intent of those who framed the provisions, Judge Scalia seemed to suggest only partial agreement.

"He said he thought the original intent was a very important guide, but he said that, for example, he did not believe that lashing and other antiquated forms of punishment would be constitutional now just because they were widely used in 1789, when the Eighth Amendment's prohibition of 'cruel and unusual punishment' was adopted."

I smiled when I read that. Was I the one who put that particular example in his mind? Probably not.

Anyway, imagine my surprise to read this exchange (scroll down a bit) from a recent appearance by Scalia:

"Flip Strum: ....if we can go back to the Court's concept of evolving standards that it used in Roper....Would you just kind of explain your Eighth Amendment jurisprudence a little bit?

"Justice Scalia: ....I'm saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today....It may be a very bad idea, just as notching ears, which was punishment in 1791, is a very bad idea...."

Fascinating. It appears the Constitution doesn't evolve, but Justice Scalia does.

[Unnecessarily snarky bit deleted]

I don't (any more than "Pajama Guy" does) have a link to the Times from 1986, but this, this and this all recount an exchange substantially like this (from the second link above):

In his confirmation hearings in 1986, Scalia discussed the 8th Amendment as it would be understood by an originalist. "The cruel and unusual punishment clause would mean precisely the same thing today that it meant in 1789." In 1986, Scalia was as yet a hesitant originalist. He told the Senators that he wasn't sure if he agreed with the originalist view, because it would have to mean that "if lashing was fine then, lashing would be fine now." Even Antonin Scalia was not ready to get up before the United States Senate and tell them that while lashing was certainly distasteful it was not unconstitutional. "I have always had trouble with lashing, Senator. I have always had trouble thinking that is constitutional."

Obviously, there is some daylight between "I have always had trouble with" something and "not believ[ing] that lashing and other antiquated forms of punishment would be constitutional now." From The Rehnquist Court and the Constitution by Tinsley E. Yarbrough, third link above, we have this:

While conceding that he should not be regarded "as someone who would be likely to use the phrase, living Constitution" he also asserted that he attempted to following the "original meaning" of constitutional provisions rather than the "original intent" of their framers and thus might accept some degree of evolutionary development in the meaning of general constitutional language. A "strict original intentist," he explained, would contend, for example, "that even such a clause as the cruel and unusual punishment clause would have to mean precisely the same thing today that it meant in 1789 ... so that if lashing was fine then, lashing would be fine now. I am not sure I agree with that. I think that there are some provisions of the Constitution that may [have] a certain amount of evolutionary content within them." At the same time, he thought the Constitution was "obviously not meant to be evolvable so easily that in effect a court of nine judges can treat it as though it is a bring-along-with-me statute and fill it up with whatever content the current times seem to acquire."

A "strict original intentist" would contend that lashing remains constitutional today... and in 1986, Scalia was "not sure [he] agree[d] with that." It's a troubling hypothetical. Scalia, though, as recounted by Yarbrough, comes around to what amounts to his contemporary view: If indeed there is "evolutionary content" in some constitutional provisions, they certainly aren't meant as carte blanche for nine life tenured judges.

Given Pajama Guy's attemtped gotcha quote, and Scalia's recent jurisprudence, it's clear he wouldn't today, in the wake of Roper and Richardson, choose the example of the Eighth Amendment to illustrate the difficulty squaring 21st century civilization with the strictures of the Constitution. In fact, given that constitutional "evolution" is more pronounced today than it was in 1986, Scalia would likely take a harder line on it than he did. He most certainly has not contradicted himself or acted differently than his Senate testimony in 1986 would suggest.

Damnable Google!

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