Scalia and Olson on Loving v Virginia

During the oral argument in the Prop 8 case on Tuesday, Justice Scalia trotted out the old conservative premise that no right exists if it wasn’t recognized long before now. This is one of the questions he asked and Ted Olson’s excellent reply to it:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?

Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true.

But in fact, that’s not true — especially to someone who claims to follow originalism. The framers of the 14th Amendment made absolutely clear that the amendment would not have any effect on state laws against interracial marriage. There’s no way in hell it would have passed if it had. So whether you’re going by the original intent, the original public meaning or the original expected application, it would be absolutely wrong to apply the 14th Amendment to strike down laws that banned miscegenation. And in fact, the Supreme Court ruled exactly that in 1883 in Pace v Alabama.

This has always been a problem for Scalia, as I’ve pointed out previously. He claims that Loving v Virginia was rightly decided, but every single argument he uses against same-sex marriage was used against interracial marriage in that case. No one can seriously believe that if Scalia was on the court in 1967, he would have been in the majority in Loving, at least not without some serious logical backflips.


  1. baal says

    Scalia’s tortured public statements and opinions show what a fantasy land ‘originalism’ is. It’s entirely rational and good policy to stick with the notion that absent a compelling case to the contrary, stare decisis is the best rule. Current courts should stick to ruling consistent with prior rules as much as possible. This promotes coherence in the law while allowing for relevant change overtime.

    By insisting on considering the mythical unified will of the founders, he’s rejecting consistency and substituting a law of his own.

  2. Childermass says

    Scalia has triple-gold at the Olympic mental gymnastics competition. Logical backflips are his specialty though he did get at least one medal for cognitive-dissonance running.

  3. Childermass says

    “When you deal with ANY brilliant man, some of his ideas may scare you. When you deal with a determined ignoramus—some of his ideas may scare you. But the scariness has a very different feeling.” — CJ Cherryh on Facebook, February 25, 2013

  4. D. C. Sessions says

    Originalism — any originalism — only makes sense to someone who is either deep in a religious frame of mind, with Sacred Texts handed down from the Revelation, or else as a contract between the past and the present: “I promised your sainted great-grandmother before she died giving birth to your grandfather that …”

    I have a hard time buying any argument to the effect that we should sacrifice the living for the dead. (Oddly enough, I can even point to a Biblical injunction against exactly that.)

    So when you come down to it, I really don’t care what the Founders wanted the words to mean today. They obviously were skilled in writing clearly, and not afraid to put pen to paper. Either let the Constitution speak for itself, attach enough explanatory commentary to keep it from being the size of the Federal Register, or else translate it from time to time. Because when you get out of Founder Worship mode, the thing is a contract for us to use today between people living today, and the people of the country (remember them?) should be able to understand that contract well enough to live by it.

    Scalia has even admitted that to him, originalism is a tool — not one for understanding the Constitution, but for justifying the meaning of it that he intends to enforce. If it doesn’t serve (as it clearly didn’t in the Second Amendment cases) then he’ll find some other.

  5. says

    Scalia’s originalism is why in the D.C. gun control case he voted only to allow flintlock pistols and muskets to be owned under the 2nd Amendment.

  6. drr1 says

    This entire line of questioning by Justice Scalia proves that at this point, he’s just mailing it in. You could hear the incredulity in Olson’s voice as he tried to answer Scalia’s repeated questions.

    As soon as Olson started asking his rhetorical question about racial discrimination, I knew Justice Scalia would go running for the textual cover of the 14th Amendment. I wish Olson had said, instead, “When did it become unconstitutional to discriminate against women on account of gender?” Justice Scalia’s head might well have exploded right then and there.

  7. lanir says

    Originalism was a new one to me. After a quick wikipedia search and the context here in the blog entry and comments, it generally appears to be an artifice, a cloak for inserting any interpretation you like.

    To put it another way, I’ve played roleplaying games and read sci-fi and fantasy novels for many years. One of the things I learned along the way is how dead simple it is to take ideas from the past and use them as a cloak for modern ideas. You see this in movies all the time too. How many dramas with historical roots have been altered to make the western idea of freedom a central concept? Dead people don’t argue that they’ve been misrepresented. It’s appealing and it’s easy to do things like this, but if you’re treating them as anything other than fantasy you’re doing yourself and everyone else involved a grave disservice. As a justice of the United States Supreme Court, these willful flights of fancy are detrimental to the rest of the country directly and may even indirectly cause ripples elsewhere. As such it’s hard to view this as anything other than despicably, willfully stupid.

  8. glodson says

    Originalism was a new one to me. After a quick wikipedia search and the context here in the blog entry and comments, it generally appears to be an artifice, a cloak for inserting any interpretation you like.

    That is Scalia’s originalism in a nutshell. It is an effort to be rooted in the past, but will magically change if the ideas in the past didn’t fit with what he wants to be true now.

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