Justice Scalia, Originalism, and Life in the 21st Century

Earlier this week, Justice Scalia and Justice Breyer debated methods of constitutional interpretation before an audience in Tuscon, Arizona.  During the event, Justice Scalia accused some of his colleagues of "making up rights."  Justice Breyer, for his part, said that under Scalia's originalism, we will have a constitution, but "it won’t be a Constitution anyone will be able to live under.”

The event, while certainly noteworthy, drew additional attention because initial reports - later proven false- that Justice Scalia had remarked that due to his originalist beliefs, he would have dissented in Brown v. Board of Education.  Before the report was revised, the blogosphere began a discussion on the statement falsely attributed to Scalia.  In particular, Professor Jack Balkin took him to task.  After the report was corrected, Professor Balkin argued that even if Justice Scalia could find a way to stay faithful to originalism and still join the majority opinion in Brown, other cases - such as Loving and Bolling v. Sharpe - would also present problems. 

Professor Balkin has a point, but I'd actually take his argument and expand it further.  For while I think whether Justice Scalia would have decided Brown a certain way is an interesting question, I think the more fundamental inquiry is whether - and how - originalism can operate in the America of the twenty-first century. 

There are many modes of constitutional interpretation.  But originalism is unique in its certitude.  The mantra seems to be "If the framers didn't think it, it must be wrong."  But is this the case?  Are the framers always correct?  I think the answer to that must be "no."  The Framers drafted a document that preserved slavery, did not allow women to vote, and limited the participation of the populace in the election of the government. However, over the years, Americans have squarely rejected those beliefs.  In an article proposing a rejection of the electoral college, Professor Jamin B. Raskin states:

We have often replaced the handiwork of the Framers when their ambivalence towards democracy recurrently thwarted popular control over government. The Thirteenth, Fourteenth, and Fifteenth Amendments after the Civil War wiped out the original exclusionary assumptions of white supremacy in politics and government. We replaced the indirect method of electing United States Senators by state legislatures in 1913 with direct election “by the people” as provided for in the Seventeenth Amendment. The Nineteenth Amendment rejected the sexism of our Framers by writing women into the body politic. . . ¹

While the article is not about originalism, the point is well-taken.  The genius of the Founders was that they included a method for amending the Constitution.  However, if the American people decide to amend the Constitution, this decision should override the Founders' understanding of the document.  In other words, on those issues where the people have spoken, why shouldn't the understanding of the populace control, rather than that of the Founders?  One of the justifications for originalism - and one given by Justice Scalia in the recent debate - is that the Constitution will suffer if interpreted based on the whims of the populace.  But the Constitution cannot be amended on a mere whim.  A super-majority of Americans must agree to any amendment.  Therefore, particularly on the issues where the American people have given some indication of their thoughts on the matter, originalism seems to be a less appropriate interpretive method. 

Many, many law review articles have been written on originalism.  Indeed, the topic is broader than one can fully address and analyze in the limits of a blog posting.  But I am glad that Justice Scalia's comments were taken out of context.  Not for the embarrassment I am sure that came to those involved, but because it gives all of us an opportunity to revisit our ideas on constitutional interpretation.  In my opinion, that process can only be beneficial.

NLS