Monday, January 10, 2011

Originalism vs. Textualism and the Constitution

Jeffrey Rosen's article about Justice Scalia in the New York Times reminded me of some "back of my mind" thoughts on Justice Scalia's all-too-convenient approach to constitutional interpretation. A recent example, his construction of the 14th Amendment, in relevant part,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Justice Scalia has previously described himself as a "textualist":
“I’m not going to rip all that up; it’s water under the dam,” he said in a 1997 speech. “In other words, I am an originalist. I am a textualist. I am not a nut.”
That should mean that he would look to the text of the Constitution and, to the degree necessary, try to figure out what the language meant at the time it was drafted so as to properly interpret its text. The textualist response to the argument that the legislature picked the wrong word is, "Too bad, so sad" - courts interpret statutes as written and if the legislature wants to change the language that's their job, not the job of the courts.

Except Justice Scalia isn't actually a textualist - at least, not when the text of the Constitution interferes with his political beliefs. For example, more than two centuries after-the-fact, he doesn't mind expanding principles of sovereign immunity based upon... where is the constitutional language recognizing sovereign immunity again? Well, not so much textualism there. But really, the example that pushes this to the forefront is his view on gender equality:
Justice Scalia also insisted that the equal-protection clause of the 14th Amendment wasn’t intended to apply to discrimination based on sex or sexual orientation, and that the Supreme Court has erred by regulating both. “Nobody ever thought” that the Constitution banned sex discrimination, he said.
There's no ambiguity here: Scalia believes the court has erred in finding that the Equal Protection clause of the 14th Amendment applies to sex discrimination. So is he arguing that at the time the 14th Amendment was drafted, women did not fit under either the concept of "person" or "citizen"? Because the text is pretty clear, isn't it. Nope. He seems to believe that it's proper to decide that the drafters of the 14th Amendment and the various political bodies that passed and ratified that Amendment chose the wrong words, and thus that he has the right to revise the text of the Constitution from the bench. As a self-professed textualist, Scalia should be looking for the meaning of terms such as "person" or "citizen" only if they're not clear from the Constitution as a whole, and even then only in relation to what those words meant at the time the Amendment was drafted. He should only be looking at intent if, after those initial steps, the language remains ambiguous.

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