America’s Last Principled Judge (TM) Speaks!
By The other Scott already discussed some of the choice bits from the Scalia interview, and some of the other stuff won’t come as a surprise. (Scalia, as anyone familiar with an of his recent high-profile oral arguments knows, gets his his news solely from right-wings sources and considers the Washington Post left-wing propaganda.) Since this part has gotten less attention, I’d also like to note that he’s retreated from a previous position of intellectual honesty:
You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
Ah, yes, he takes “the bitter with the sweet,” and his originalism is never affected by his right-wing political views. In this case, I’m hoping he can share with us the “originalist” basis for the following positions he’s taken:
- The 14th Amendment forbids states from using different systems to count votes in different localities if this could result in a Republican president not being elected, and not in any other case.
- The 5th Amendment was understood in 1791 as forbidding all racial classifications.
- When the framers of the 11th Amendment wrote “another State,” they secretly meant “your own State.”
- Section 2 of the 15th Amendment was understood by its framers and ratifiers as enacting Dred Scott‘s theory of state sovereignty.
Of course, I’m sure Scalia has reached all these positions through extensive historical analysis that he’s just too modest to share with us.
As a bonus, America’s Last Principled Judge goes on to make a definitively non-originalist and non-textualist argument in response to the very next question:
So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
The “inkblot” argument hasn’t improved since Bork made it, and whatever an argument that the 9th Amendment isn’t supposed to mean anything is, it’s not “originalist” or “textualist.” But one can hardly blame Bork and Scalia for wanting to read the Constitutional provision that instructs the people not to read the Constitution the way Scalia and Bork read it (when it wouldn’t conflict with their most cherished policy preferences) out of the document.