Scalia’s Convenient Originalism


Jennifer Senior has a fascinating interview with Justice Antonin Scalia in New York magazine. I was going to write a post about it, but there are so many statements in it that need to be critiqued that I decided to break it up into a number of different posts rather than one incredibly long one. This one is about his claim to being a real originalist now:

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

I would argue that Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge. Thomas is a far more consistent originalist than Scalia.

Comments

  1. Michael Heath says

    Ed asserts:

    Thomas is a far more consistent originalist than Scalia.

    Yes, but Justice Thomas is in no way consistent. He too is a standard-issue results-oriented justice.

  2. John Pieret says

    if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional

    So, immensely stupid punishment for crimes is not cruel and unusual?

    I suppose that goes with the original intent of the Framers that immensely stupid Supreme Court Justices should follow them.

  3. eric says

    I think the Raich and ACA comparison is not as argumentatively strong as comparing the ACA to medicare and the VA. Doesn’t matter if one is originalist or not – its absurd to claim that it’s constitutional to force the general populace to support health care for old people and career military, but not young people and non-military. There couldn’t possibly be such a distinction in the constitution, given that the founders were opposed to a standing army/career military.

  4. eric says

    John Pieret:

    if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional

    So, immensely stupid punishment for crimes is not cruel and unusual?

    I expect that, if you gave many people the choice between flogging and a year or more in jail, they’d say the jail time was more cruel. Maybe not in an ‘ideal’ jail, but in the real ones where inmates are regularly abused by other inmates…yeah. The flogging is one instance of physical abuse. The jail time could incur many.

  5. John Pieret says

    eric @ 6:

    … flogging is one instance of physical abuse. The jail time could incur many.

    Ah, but that is a <different argument! Our jails/prisons may well be cruel and unusual punishments (and the courts address that argument, as in California being required to release prisoners from its overcrowded system).

    In point of fact “cruel” and, especially, “unusual” are necessarily and intentionally supposed to be a measure of the populaces’ current sensibilities as to what is “cruel” and what is “unusual.” To try to limit those phrases to what the people of the Seventeenth century thought they meant is to not ‘originalism” but a denial of it.

  6. colnago80 says

    Re eric @ #6

    If the flogging was applied with a cat of nine tails, most would opt for jail time.

  7. joe_k says

    Re eric @ 6:

    Surely, getting assaulted by fellow prisoners is not part of the punishment, and therefore has no bearing on whether imprisonment is either cruel or unusual. And even if it were decided that imprisonment were more cruel than flogging, that wouldn’t make flogging constitutional, just imprisonment unconstitutional…

  8. eric says

    Surely, getting assaulted by fellow prisoners is not part of the punishment, and therefore has no bearing on whether imprisonment is either cruel or unusual.

    If it’s a reasonably forseeable and expected outcome, I’d argue that it has bearing regardless of whether its part of the planned punishment or not. Imagine there are two flogging states. State A takes great effort to ensure the practice is antiseptic and that the punished person doesn’t contract a disease. B does not; in fact they immediately throw the perpetrator into conditions that medical doctors declare have a very high risk of causing the person to contract a disease. Should the law consider both floggings to be equivalent? So, how about the case of state A taking precautions to ensure the risk of assault in prison is low, vs. B which does not?

    Or to consider a more visceral case, think about two juvenile detention facilities, one where rape is common and the other where it’s not. Surely you want that fact to have bearing on a judge’s decision as to whether to send your son there or not? The judge should not be blind to this fact when considering sentencing, should he?

  9. says

    @10 eric:

    I’d go even further than that. It’s obviously an outlying example, but consider someone being punished to having a needle poked into their skin. One state goes with a plain sterile needle, the other state goes with a needle that’s been in contact with something deadly (nicotine, let’s say for some hilarity). Both punishments are identical if you only consider the sentence, but obviously one has a far more sinister outcome.

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