Scalia’s Political Originalism

In light of Scalia dismissing various precedents as easy cases decided incorrectly, it’s worth returning to Richard Posner, who recently gave what could be used as the induction speech for Scalia’s induction into the Academy of the Overrated. The whole thing is so good it defies excerpting, but one more or less arbitrarily selected taste:

It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified. Yet Scalia and Garner claim that “recent research persuasively establishes that [the ruling in Brown that separate but equal is not equal] was the original understanding of the post-Civil War Amendments,” citing for this proposition a single law review article published seventeen years ago. They do not mention the powerful criticism of that article by Michael Klarman, a leading legal historian—which the author of the article they cite, Michael McConnell, is not, although he is a distinguished constitutional law professor and a former federal judge. And, ironically, McConnell based his analysis on the legislative history of the Fourteenth Amendment, which should be anathema to Scalia.

Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.

OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism…

While we’re talking about the 14th Amendment, you’d think that a “textualist,” when asserting-without-serious-argument that the 14th Amendment could not possibly apply to gender classifications, would at least note that the 15th Amendment specifically mentions racial classifications and the equal protection clause of the 14th doesn’t, which creates a strong presumption that the 14th Amendment should not be held to apply exclusively to racial classifications. But since textualism would conflict with his strongly held political preferences, he’s never even addressed this. (I’m also guessing that his new book fails to give an “originalist” or “textualist” defense for the holding that the equal protection clause applies to race…and to non-uniform vote counting procedures in the context of the 2000 presidential election counts in Florida, but not in any other case, including any 2000 vote count that favors his preferred candidate for president.)