Scalia 1989 Originalism The Lesser Evil

Summary

Flow of Article

See also Our Perfect Constitution

2023-09-25: Scalia Originalism: The Lesser Evil 1989

• [Taft Constitutional Law lecture] [Taft's] opinion for the Court in Myers v. United States, which declared unconstitutional congressional attempts to restrict presidential removal of executive officers. [Nine years later, Humphrey's Executor v. United States] a unanimous Supreme Court essentially overruled the analysis of Myers in fourteen quick pages. (851)
• What attracts my attention about the Myers opinion is not its substance but its process. It is a prime example of what, in current scholarly discourse, is known as the "originalist" approach to constitutional interpretation. (851)
• The objective of the [Taft's] lengthy opinion was to establish the meaning of the Constitution, in 1789, regarding the presidential removal power. (852)
• He sought to do so by examining various evidence, including not only, of course,
  • the text of the Constitution and its overall structure, but also [four corners]
  • the contemporaneous understanding of the President's removal power ..., [intent]
  • the background understanding of what "executive power" consisted of under the English constitution, [foreign history]
  • and the nature of the executive's removal power under the various state constitutions in existence when the federal Constitution was adopted. [state executives] (852)
• If constitutional interpretation could be adjusted as changing circumstances required, a broad initial interpretation would have been unnecessary. (853) [??? required to be broad enough to encompass changing circumstances ???]
• [mentions of Laurence Tribe, Paul Brest, Owen Fiss, Ronald Dwokin, Richard Parker, David Richards, "and I could go on."] (853)
• The principal theoretical defect of nonoriginalism, in my view, is its incompatibility with the very principle that legitimizes judicial review of constitutionality. (854)
• Central to [Marshall in Marbury v. Madison] ..., is the perception that the Constitution, ..., is an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. (854) [emphasis added]
• One simply cannot say, regarding that sort of novel enactment [an "invitation to apply current societal values"], that "[i]t is emphatically the province and duty of the judicial department" to determine its content. (854) [Reynolds v. Sims an application of "current societal values" or equal protection?]
• Apart from the frailty of its theoretical underpinning, .... (855) [end of argument]
• And it is hard to discern any emerging consensus among the nonoriginalists as to what this [alternate exegetical approach in place of originalism] might be. (855)
• As the name "nonoriginalism" suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach. (855) [Scalia pretends ignorance of Rehnquist's Notion of Living Constitutionalism. Perhaps Scalia's seat is too far from the center.] [An attempt to attach an "Antifederalist" like name to others.]
• [claims other methods can be used to contract liberties]
• I think it highly probable that over the past two hundred years the Supreme Court, though not avowedly under the banner of "nonoriginalist" interpretation, has in fact narrowed the contract clause of the Constitution well short of its original meaning. (856) [Home Building and Loan Association v. Blaisdell See Cornell; Constitution Annotated; Bieneman]
• Let me turn next to originalism, .... Its greatest defect, in my view, is the difficulty of applying it correctly. ... it is often exceedingly difficult to plumb the original understanding of an ancient text. (856)
• [Ascertaining original meaning] It is, in short, a task sometimes better suited to the historian than the lawyer. (857)
• [Side story regarding Taft's Myers opinion]
• ... the second most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. (861)
• Thus, almost every originalist would adulterate it with the doctrine of stare decisis--so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong. (861)
• I am confident that public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality. (861)
• One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content .... (862)
• But to be faithful to originalist philosophy, one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence. (861) [once found, all future changes are allowed?]
• And if the faint-hearted originalist is willing simply to posit such an [evolutionary] intent for the "cruel and unusual punishment" clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.? (862)
• When one goes down that road, there is really no difference between the faint-hearted originalist and the moderate nonoriginalist, .... (862) [emphasis added]
• [ Scalia drops the subject immediately.]
• The practical defects of originalism, on the other hand, while genuine enough, seem to me less severe. [but there is really no difference]
• The death penalty, for example, was not cruel and unusual punishment because it is referred to in the Constitution itself; (863) [where? and if so, is the list exhaustive? demonstrate that it is not.]
• That ... is the real dispute that appears in the case [Thompson v. Oklahoma death penalty for minors]: not ... concerning the validity of looking at all to current values; but rather ... concerning the nature and degree of evidence necessary to demonstrate that constitutional evolution has occurred. (864) [meaning is not fixed]