Supreme Confusion

Published April 13, 2005

National Review Online

As the battle over the judiciary escalates, the media continue to describe Supreme Court rulings in the binary liberal-versus-conservative lexicon of American politics — i.e., as victories or losses for liberals or conservatives. But this results-oriented political lexicon obscures the deeper question of American political philosophy at stake: whether the unconstrained role that the Supreme Court has defined for itself in creating new constitutional rights can be reconciled with the core tenets of our constitutional republic. This is, of course, a question that the Left, as the overwhelming beneficiary of the Supreme Court’s rights-invention, is not eager to highlight. Evidently acting on the premise that the best defense is a good offense, legal academics and their allies in the media have instead attacked and caricatured “originalism” — the traditional, common-sense understanding that the current meaning of the Constitution and of other laws is to be determined in accordance with their meaning at the time that they were promulgated.

Margaret Talbot’s recent New Yorker profile of Justice Antonin Scalia and his jurisprudence (“Supreme Confidence“) is more balanced and insightful than the typical liberal critique of that outstanding jurist. In particular, Talbot credits Justice Scalia with an “over-all voting record [that] is remarkably free of contradiction” with originalist principles — a seemingly powerful testament to the integrity of Justice Scalia’s commitment to originalism, even when it yields results that he as a policymaker would disfavor. Amidst the usual litany of tendentious labels (“snappish,” “belittling,” “pugnacious,” and so on), she acknowledges that his opinions “can be trenchant and funny.” And, lavishing praise that even the most ardent admirer of the justice might find over-the-top, she describes him as having a “square, ruddy face; thick black hair with a patent-leather sheen; . . . and an almost daunting air of vigor.”

Yet Talbot’s account has a deep and pervasive flaw — a flaw that reflects an elementary but surprisingly widespread confusion among critics of originalism. Specifically, Talbot repeatedly conflates Justice Scalia’s determination that the Constitution leaves specific matters to be decided through the people’s elected representatives with the mistaken assessment that he thereby would somehow be imposing his own substantively conservative results on these matters. Consider, for example, the following passage:

Although proponents of originalism claim that it is a politically neutral method, in Scalia’s hands it usually leads to conservative results — at least on social issues like abortion, capital punishment, and gay rights.

What Talbot evidently does not comprehend is that on each of these “social issues” Justice Scalia’s understanding of the Constitution binds him as a jurist to defer to whatever laws the people might adopt — including, for example, fully funded abortion through all nine months of pregnancy, the abolition of capital punishment, and the redefinition of marriage to encompass same-sex couples.

Stated somewhat differently, if Justice Scalia were in fact to read into the Constitution his own (presumed) substantive views on abortion, he would conclude that permissive abortion laws were themselves unconstitutional. Likewise, he would conclude that legislators could not abolish capital punishment and could not create same-sex marriage. His clear rejection of these positions demonstrates that on these issues Justice Scalia’s originalism is in fact politically neutral. In other words, originalism will lead to “conservative results” on these issues only if, and to the extent that, elected legislators enact conservative positions into law. Conversely, originalism will lead to liberal results when elected legislators enact liberal laws. And, of course, the free play that originalism gives to the political process on these issues will allow the electorate the flexibility to change its collective position over time.

Talbot’s misunderstanding also badly infects her discussion of Justice Scalia’s dissent from the Court’s 2003 ruling in Lawrence v. Texas, which invented a constitutional right to engage in homosexual sodomy. Talbot charges that his dissent’s invocation of the moral opposition of many Americans to homosexual conduct “leave[s] the unavoidable impression that he is speaking not only for originalism but also for his own selective notion of the vox populi.” But Justice Scalia was not selecting who should speak for the people of Texas. The vox populi of Texas had spoken through the statute that Texas enacted, and Justice Scalia was merely explaining that the Court was wrongly taking sides in the ongoing culture war by quashing that statute.

Over the last several decades the courts have engaged in a massive judicial power grab committed in the name of the “living Constitution” — the vapid euphemism that liberal activists have used to pretend that the Constitution has somehow “grown” to entrench forever their own policy preferences. What Justice Scalia places squarely at issue is whether this power grab has any serious claim to be regarded as legitimate by the American citizens whose ability to govern themselves through their legislators has thereby been radically diminished. This is the question that should be front and center in the ongoing debate over the judiciary.

Edward Whelan is president of the Ethics and Public Policy Center and directs EPPC’s program on The Constitution, the Courts, and the Culture. Whelan formerly served as a law clerk to Justice Scalia.

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