Scalia is Originalist... Except When He's Not

One of the lingering questions I have had since the NAMUDNO decision was handed down over the summer is just how the self-professed "originalists" on the Court could square their skeptical views on the constitutionality of the Voting Rights Act with the very plain intention of the framers of the 15th Amendment that Congress, rather than the Court, should have the power to enforce Americans' right to vote. When the amendment was drafted in the years following the Civil War, the context was clear: the Supreme Court, whose disastrous Dred Scott decision not only was one of the impetuses for the war but also served to enshrine the institution of slavery, was not to be trusted; instead, faith would be placed in the Congress, which was then firmly under the control of the progressive (particularly on racial issues, but also on many economic ones as well) Radical Republicans. With that original intent fairly clear, how could an "originalist" sitting in a Court more than a century later, rule to limit Congress' power in this area?

It looks like I'm not the only one wondering whether the fealty shown by these so-called "originalists" to the original intent behind the Constitution is genuine or rather a rhetorical device to be thrown out when inconvenient. Here's the not-so-liberal Wall Street Journal's Law Blog:

In Wednesday’s WSJ, however, Georgetown Law Professor Randy Barnett takes serious issue with the court’s hesitation [to use the "Privileges or Immunities" clause of the Fourteenth Amendment as the basis for finding that the Second Amendment applies to the states] — specifically at those justices, like Justice Scalia, who claim to be “originalists,” or guided by the Constitution’s “original” meaning. Barnett writes that a glance at the original meanings behind the PorI Clause and the Due Process clause lead to one conclusion: that PorI is the proper vehicle for Second Amendment incorporation.
But what about the clause protecting the “privileges or immunities of citizens of the United States”? . . . Actually, the right to keep and bear arms was among the most frequently mentioned privilege of citizens when the amendment was being considered in Congress.

The evidence is clear that the privileges or immunities of citizens included those rights in the Bill of Rights. As Michigan’s Sen. Jacob Howard explained to the Senate, these privileges or immunities included, among others, “the personal rights guarantied and secured by the first eight amendments of the Constitution; such as . . . the right to keep and to bear arms.”

In contrast, no one thought the language of the Due Process Clause included a right to arms. On this point there is consensus among constitutional scholars whether left, right or libertarian.

According to SCOTUSblog, Justice Antonin Scalia, who fancies himself to be an "originalist," had the following to say about the invocation of the "Privileges or Immunities" clause:

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate”...

I'd recommend you read the whole WSJ post, because it's interesting and gets to the heart of this very key question: Just how much do the "originalists" actually care about original intent?

Tags: Originalism, Supreme Court, SCOTUS, NAMUDNO, McDonald v. Chicago, Antonin Scalia (all tags)



Come on,

They are originalists when that gives them the rationale to rule the way they want to, they are federalists when that gives them the rationale to rule the way they want to.  They are for states rights unless it doesn't gives them the rationale to rule the way they want to.  Giving them the benefit of the intellectual doubt is a weak suckers play, just like the liberals they despise.  You can predict their ruling based on what they want, rich over everyone else, whites over everyone else, religion as long as it's fundamentalism or Catholic and government over civil rights.

by msobel 2010-03-03 11:51PM | 0 recs
RE: Come on,

....and perhaps if we can get the greedy old geezer, drunk with power, Ruth Bader Ginsburg to retire before it is too late, instead of hanging on until the end of the Obama administration, be it 2012 or 2106, we wont get too many Scalias in the Supereme Court. Everyday my contempt for this woman grows. People like her are responsible for why we have folks like Scalia on the Supreme Court.

by Boilermaker 2010-03-04 07:34AM | 0 recs
Privileges and immunity vs history

I don't know shit about "privileges vs immunity" and I support to the hilt state and local authority to regulate handguns and military weapons. But history is history and I was trained as a historian.

You cannot separate the Bill of Rights from the state of British Law and the claims of the Crown as against its citizens at the time. If you go down the list of the Bill of Rights you will find that at least the first eight were drafted in direct contravention of existing British law, which at that time obviously governed the Colonies. In 1777-1789 Britain had a well-regulated militia and it was fully armed by the State and used openly to suppress any claims to Democratic rights by the people. If British gun laws had been actually enforced in the American Colonies there would have been no Concord and no Lexington, similar efforts to assert democracy against the King's Ministers being brutally suppressed in England during those years, in large part because the people were barred from possessing guns.

Maybe that was a good thing, after all England managed to emerge from the nineteenth century as an electoral democracy (which it wasn't a hundred years previously) but a clear examination of the historical record shows that the Nutbag Second Amendment Absolutists have history on their side. The Founders had clearly and of their own free will committed themselves to a course of treason, failure would have meant forfeiture of their "Lives, Fortunes and Sacred Honor", the official penalty at that time including being drawn and quartered and having your remains stuck up at Traitor's Gate in London. The American Revolution was no joke, it was armed rebellion against the King and relied on a citizenry armed and ready to take on the armed forces of the Crown. And on my reading the Founders clearly anticipated that needing to happen again, there being no reason in logic or history to not have another King George III and Pitt the Elder arise again.

Yes Second Amendment absolutists tend to the paranoid side. Yes the conditions of 20th and 21st century America require taking a stronger look at what it means to allow unlimited access to weaponry unimagined at the time of the American Revolution. Rationality suggests reasonable limits, self defense does not need to extend to fully automatic weaponry and King George Bush IV aside odds are we will never need an armed revolution. But parsing the words of "well regulated militia" doesn't change the history of eighteenth century Britain, if we had to judge this from the reality-based continuum the only conclusion a fair-minded, fully informed observer can come to is that the gun nuts are right.

The Second Amendment is a validation of the Battles of Concord and Lexington. That we don't like the implications is our problem.

by Bruce Webb 2010-03-04 03:05AM | 0 recs


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