by Matt Barr

Captain Originalism

Ed Brayton highlights recent posts on Volokh about "fainthearted originalism." Prof Bernstein had written:

[T]o be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."...But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

Ed agrees:

The Scalia/Bork version of originalism will always find itself in this quandary because, applied consistently, it reaches some truly disturbing results. So they have to put it away sometimes and pretend that they're not putting it away. If they left room for an appeal to the broad principles of natural rights, as the Thomas version of originalism does (or better, as the Barnett/Gerber version of liberal originalism does), they would find a way out of that conundrum. As long as they refuse to allow the Declaration to be used as a lens through which to view the Constitution, this sort of contradiction is inevitable.

I think there's a key here that's identified but not used. It doesn't rehabilitate Mr. Justice Scalia in terms of his analysis and conclusions, but I think Prof. Bernstein was saying more than maybe he meant to, and more than Ed reads, when he described "Justice Scalia, originalism's supposed great champion" (same link). The originalism being described here, that Scalia fails to adequately champion, is one that views the Constitution through a certain "lens," as Ed describes it.

The story of the Constitution can be told a number of ways, and one of them, certainly one I find attractive, is that it was ratified to prevent government from abridging personal and economic liberty any more than necessary to ensure maximum participation in commerce, discourse and democracy. To that end Prof. Barnett would argue that laws should be read to promote or protect liberty as much as possible, sort of a rule of lenity for criminal and non-criminal law alike. The appeal to "originalism" is that the founders thought they were setting something like that up, but it is, I think, a disingenuous appeal. To the extent it's true, which in my view is to a great extent, the real reason we want to approach regulatory activity this way is that it's a good idea quite apart from what they thought of it in 1787. It promotes a free, liberal, prosperous society. Sign me up.

But it's not "originalism," nor is, and this is the point, Scalia's jurisprudential approach, to be frank. Scalia's approach is textualist: We are governed by laws, including the Constitution, made up of written, English words. Certainly, two people can read the same sentence to mean different things; even more certainly, they can read Constitutions in toto to mean different things, but relying on the printed, voted upon, ratified words is, of all the choices, the most reliably objective way to ensure everybody is (quite literally) on the same page.

Scalia's frequent reference to what the words of the Constitution meant when ratified is a type of originalism, but not the type he's being maligned for inadequately championing. When there is ambiguity about what words might mean, resort should be made to what they meant to the people who voted aye. Does the Fourth Amendment prohibit laws regulating abortion? To the extent there is disagreement about this (and there is, much to the chagrin of a textualist), evidence that the people who ratified the Amendment went on to continue enforcing laws against abortion is relevant.

Fast forward to today: Does the execrable Bipartisan Campaign Finance Reform Act apply to Internet speech? The unfortunate answer is yes, given that efforts have been made to affirmatively exempt Internet speech from it, that have failed. This is not a totally apt comparison, because naturally, even if the text of that statute meant to regulate speech, if it conflicts with the First Amendment, it can't stand. But pretend the BCFRA is a constitution. Does it say Internet speech can be regulated? It would be very difficult to argue that it doesn't, or, put this way, concluding that it doesn't would come as a surprise to the people who voted for it, and for or against the Online Freedom of Speech Act.

I fear I'm going to regret using this as an example, because the argument can be made that whether it says so or not, it shouldn't, and I agree. A proper textualist, though, would, agreeing, say it should therefore be changed with a new law, not by a court (ignoring for a moment, again, the fact that we're talking about a law that is illegitimate if it conflicts with the Constitution, and not a Constitution itself). Mr. Justice Thomas, sometime poster judge for originalism (cf. Brayton, above), might say,

[T]he law before the Court today "is ... uncommonly silly."... If I were a member of the ... Legislature, I would vote to repeal it.... Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'"

That's overreaching majoritarianism! And therefore another post. The long-lost point of this one is that Scalia is less an originalist than a textualist, and is properly understood as so. So is, by the way, his much-maligned Raich concurrence. The Necessary and Proper Clause -- words in the Constitution! -- empowers Congress to regulate intrastate activity if it "may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself 'substantially affect' interstate commerce," he said, distinguishing previous Commerce Clause cases which sought to regulate non-economic activity. Agree, disagree, this wasn't originalism, Ed and Prof. Bernstein are right -- but it was textualist.

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