Tag Archives: Posner

Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.


An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..