Scalia a false prophet of ‘originalism’


The great Felix Frankfurter once lodged the claim that Supreme Court justices “take the veil” – become as self-abnegating as monks – when they mount the bench. But judicial history shows that most judges, not least Frankfurter himself in his role as backstairs counselor to FDR, are far from monkish. Including Antonin Scalia, whose unexpected death was announced Saturday evening.

If Justice Scalia ever took the veil in his three decades on the court, it was transparent to the point of invisibility, whether he was hazing lawyers during courtroom argument or starring on the off-season lecture circuit, with pronouncements that frequently tested the limits of judicial propriety.

Yet he was widely liked as a person, and I felt a stab of genuine sadness when I learned of his death. I wasn’t privileged to know him well but had a sampling of his sociable personality and gourmet interests when my old friend Charles Fried was leaving Washington after a turbulent term as solicitor general. There was a round of farewell dinner parties at which Scalia and Sandra Day O’Connor were regulars. The justice knew, I think, that I had made something of a hobby of writing about the court; but by the rules of Washington social occasions the discussion of political business was strictly forbidden. He was most amiable across a dinner table.

Our casual acquaintance did not, however, extend to admiration of his vaunted “originalism,” of which newspaper readers will read more than a little in coming days. As commonly defined, that judicial approach holds, as its premise, that judges are solemnly obliged by their oaths to seek and enforce the primal – “original” – intent of constitutional provisions. In fact, as often noted by Judge Robert Bork, Scalia’s confrere, constitutional interpretation does impose a special obligation. Unlike the elusive duty of parsing mere statutory law, constitutional holdings are usually permanent unless or until modified by amendment.

That special obligation conceded, Scalia’s approach was overrated, not least by himself. No doubt his originalism had been sharpened by frequent clashes over the years with more punditorial justices like his jovial and influential colleague William Brennan. Brennan sometimes went as far in loose construction as Scalia claimed to shun it.

But Scalia’s claim to constitutional fundamentalism suffered from the same frailties as its biblical counterpart and often entangled him in inconsistencies. Two of those, of ultimate importance, might be cited. Both involved key clauses of the Bill of Rights.

The 2nd and 8th Amendments

The Eighth Amendment bans “cruel and unusual punishments,” and, Scalia’s critics would argue, the term “unusual” presupposes that public attitudes toward criminal penalties evolve, as they clearly do. We no longer practice drawing and quartering, for instance; and hanging and gas chambers are becoming passe. But in his unbending insistence on the permanence of the death penalty, Scalia the grammarian ignored the plain gist of the word “unusual” and clashed with Scalia the jurist. Public favor remains, but that public favor could change.

Then there is the ever-controversial Second Amendment, which takes as its premise the need for a “well-regulated militia” and provides that “the right of the people to keep and bear arms shall not be infringed.” When the amendment was added to the Constitution in 1791, its “original intent” was undisturbed by NRA propaganda and airy law-professorial speculation. And it had a substantial Anglo-American history. It assured that in times of war or civil disturbance, the primary armies would be “well-regulated” local and citizen armies, not overbearing national armies controlled by the national executive.

Arms bearing is a military function, not private gun-toting. That lucid constitutional provision has been grossly distorted by gun-lobby propaganda into a “private” entitlement to conceal and pack deadly weapons, even in public places. (The ancient common-law crime, “going armed to the terror of the people,” has mysteriously disappeared.) For the recent incorporation of NRA propaganda as constitutional doctrine, we have Scalia to thank – or blame, as the case may be. For he has been the most insistent apostle of that supposed right on the court. Many distinguished colleagues, including Chief Justice William Burger and Justice Lewis Powell, have strenuously differed.

The coming tributes to Antonin Scalia’s public service and sociability will be wholly appropriate, for he was a good and patriotic man. The ecstatic celebrations of his claims as a prophet of “originalism” should, however, be taken with a generous shake of the salt-cellar.

Edwin M. Yoder of Chapel Hill is a former editor and columnist in Washington.