Scalia’s Idea of Originalism

Justice Antonin Scalia is an honourable man. Graduate of such esteemed institutions as Georgetown University and the Harvard Law School and holding the position of Supreme Court justice since 1986, Scalia must surely be an honourable man. He certainly presents his positions as honourable and incontrovertibly just, stating that his originalist views offer the most accurate interpretation of the Constitution while still allowing the public a “[full ability] to abolish [laws with which they disagree] by legislation” (“A Conversation on the Constitution”). Yet, Justice Scalia is, too, a hubristic man.

He is quick to abandon all pretenses of diplomacy, instead opting for audacity and self-aggrandizement in several of his opinion pieces, appearing wholly unconcerned with the consequences. However, Justice Scalia is most audacious, most supercilious not in his uses of improper phrases such as “pure applesauce” and “jiggery-pokery” in official opinions (Viebeck), but in his entire, misguided interpretation (called originalism) of the one document of which he is supposed to protect the sanctity: the United States Constitution. He claims that the Constitution is not, and was not intended to be, a living document and that, therefore, the Supreme Court should interpret it in the most literal sense, as if it were still 1789.

It seems as if Justice Scalia has mistakenly skimmed over the clarification in the preamble of the Constitution which states that the framers of the Constitution intended to “secure the Blessings of Liberty to [themselves] and [their] Posterity” (United States). Scalia can not, with much legitimacy, claim that the US Government should follow the Constitution exactly as it applied in 1789 if the framers themselves did not even intend this. The framers even elucidated the point that their groundbreaking Constitution would specifically protect the liberties of their “Posterity” too, a task that cannot be accomplished without accepting alterations of circumstance and context (United States).

Thus, the Constitution should not be read through a literal lens, but through a lens that takes into account the values argued for in the document and applies those values to dilemmas faced today. By this objective examination of the Constitution and of the people to which it was intended to apply, Scalia’s originalist dogma proves to be, ironically, both “pure applesauce” and “jiggery-pokery.” In the case of “DC v. Heller,” Justice Scalia balances a large portion of his argument on the use of “the people” throughout the Constitution. He claims that the use of “the people” in the Second Amendment undermines the use of “the Militia,” as “the people” is used so few times in the Constitution and applies only to universal, individual rights (Scalia DC v. HELLER). Thus, the Second Amendment would apply to all people, not just people part of a Militia.

And, while one must concede that it is evident that this Amendment applies to all people in the Constitution, “the right of the people to keep and bear Arms, shall not be infringed,” is still not totally extricable from “A well regulated Militia, being necessary to the security of a free State,” (Scalia DC v. HELLER). The prefatory clause gives the amendment context, a context which limits the people’s right to bear arms only at a time when an organized and local military force is necessary to secure a free State. The value expressed here is, in fact, that the American people do have an individual right to bear arms— or, in the case of DC v. Heller, have a loaded gun at home- but that this right only applies when there is some force threatening the security of a free State, which then requires an organized militia (or as the first Militia Act states, “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years” and Scalia himself puts it “all able- bodied men”) to protect itself (Scalia DC v. HELLER).

In 1791, the American people did need the right to bear arms in order to defend their free State, which is defined (and Scalia agrees) as their free country, but, in 2008, there was no such need, the security of the free State did not require “all able-bodied men” to have the right to bear arms. Therefore, Heller did not have the distinct right to keep an assembled handgun in his house, by the context of the Second Amendment. And in this decision, Scalia’s originalism limits his capacity to interpret the Constitution so that it applies to the the future generations of Americans and accounts for ambiguities in its phrasing. While Scalia does admit that there are some sections of the Second Amendment that need clarification, he interprets those obscurities solely in the context of 1791, which then isolates his subsequent opinion to the year 1791, failing to make any decision for the “Posterity,” (United States).

In the case of “Citizens United v. Federal Election Comm’n,” Scalia again fixes his judiciary lens on 1791, failing to consider any developments which may affect the “Posterity,” and even adjusting his theory of originalism in order to support his opinion (United States). He argues that the dissent both strays too far from the Constitution in order to articulate a “corporate-hating” opinion and does not sufficiently support their own claims regarding the First Amendment (Scalia CITIZENS UNITED). Scalia rebuts that there is no mention of corporations in the First Amendment that would prevent them from having the freedom of speech and that this permittance of the freedom of speech for corporations still applies 2010, as corporations of today are still comparable to corporations of 1791. Now, one must concede that there does not appear any substantial prohibition of the freedom of speech for corporations in the First Amendment; however, Justice Scalia reflects an egregious misconception in his further defense of the Citizens United case, by stating that corporations, and their role in government, have not changed much since 1791.

This misconception not only delegitimizes his argument but also delegitimizes the stringency of his originalism. In comparing corporations of 2010 to “colleges, towns and cities, religious institutions, and guilds” of 1791 (Scalia CITIZENS UNITED), he simply paints a horse and an ass the same color and calls them the same. “[C]olleges, towns and cities, religious institutions, and guilds” in 1791 did not have as much monetary holdings or political influence as corporations of 2010 (Scalia CITIZENS UNITED), nor did they even (or at least colleges, towns and cities, and religious institutions) function solely for financial gain as many corporations of the twenty-first century did. In this argument, Scalia finds himself in a precarious situation, as he is not only defending a misrepresentation of the role of corporate entities on society (a role that had changed more than enough, growing more corrupt, since 1791 to merit the abridgment of corporate speech) but also contextualizing the issue (in opposition of his strict originalism). However, he must argue the “similarities” between corporations of 1791 and of 2010 to further his point.

This departure from ironclad originalism was not an isolated incident either, as lawyer, Alan Dershowitz, “added that he ‘could cite 20 to 30 cases’ in which Scalia ‘eschew[ed] history,’ and wondered why that was so for the man who constantly preached the values of originalism,” (Biskupic 396). Therefore, in this specific case and others, Scalia himself reveals the pitfalls of originalism, as he is forced to stray from its principles just to make his point cogent. Despite the evidential support of the Constitution (in its application to “Posterity” and ambiguous language) and in the cases of “DC v. Heller” and “Citizens United v. Federal Election Comm’n” against originalism, it is still a generally valid theory of interpreting the Constitution. By viewing the Constitution not as a living document, but as a literal document, Scalia ignores the ambiguities, but his interpretation is not technically wrong.

The Constitution does, in fact, prohibit cruel and unusual punishment, but, as Scalia argues in his discussion of Constitutional interpretation with Justice Stephen Breyer, the death penalty was not cruel and unusual in 1791, so the death penalty must still be considered not cruel and unusual. This is a completely valid way to interpret that amendment. And yet, Antonin Scalia is a Supreme Court justice and, thus, his role in government is to clarify and create laws for the people currently alive in the United States. His originalism clouds this ability to formulate opinions that are right and just for the people of today, as it specifically only applies to 1791.

However, most importantly, his originalist doctrine specifically ignores the fact that should guide every Supreme Court decision— that the Constitution is intended to “secure the Blessings of Liberty to [the people of the framers’ time] and [their] Posterity,” (United States). Justice Scalia does not consider the “Posterity,” the people to which his decisions will actually affect, and, therefore, his originalism, while still generally valid, is ultimately an inappropriate and ineffective way of interpreting the Constitution and cannot even be considered entirely valid in its ignorance of this application to “Posterity,” (United States).

Justice Antonin Scalia takes a controversial approach to interpreting the Constitution and, while entertaining at times, it remains inadequate. Originalism is a novel idea, though it lacks in evidence found directly in the Constitution, as the Constitution appears to have been formed specifically to be a living document. Its ambiguities in language and direct statement that it is intended to apply to all future generations of Americans lend the document to interpretation based on context and circumstance, a fact which Justice Scalia even concedes to (albeit indirectly) in his Citizens United opinion. In considering the merits for originalism, one must remember that the United States Constitution was not written directly for the framers or for solely Justice Scalia, but for the current citizens of the United States of America. It is a democratic document and a living document which must be maintained by the Supreme Court and adjusted as democracy and pertinent issues develop and grow.

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