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?


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