Tuesday, February 16, 2016

Antonin, we over-knew ye

I had a long, turgid post on Scalia's "originalism," placing it in context with legal positivism and legal realism.  But the fact is, "originalism" was a scam, a con, a not-so-sly joke of Scalia's, aimed at post-modernism and its theories that rest on the necessity to interpret, and how interpretation undermines all claims to truth and absolute validity.

Scalia wanted validity, and appealing to the original intent is the way to get there.  Just ask the fundamentalists.

The past is always (still) the place where everything made sense, the present roils with confusion and alarums as ignorant armies clash by night on the darkling plain of possibility, and the future is apocalyptic:  either a blighted wasteland or a corporately-controlled hellscape.  That, at least, is the most common view of time in our culture today.  Yesterday all the past, as the poet said, and we long to return to that time when everything was orderly and unified and no one quarreled about basic tenets of civility and decency the way they do today.

Right, Parson Weems?

So "originalism" appeals to a knee jerk reaction to believe that at one time we figured it all out, and then history or politics or just "them" intervened and messed it all up, and now we've got to get back to the Garden.  Not move forward; never forward; that way lies disaster and more of the present same.  Back, we must beat back against the tide, into the past where life was simpler and more true.

Originalism was never a judicial philosophy nor even a coherent set of reasons for statutory or Constitutional interpretation.  It was Scalia's not-so-clever rejection of modernity in favor of whatever he favored.  It wasn't clever; it was Scalia laughing up his sleeve, because he was always right about the law.  And he was always right because he was Scalia, and he was smart; didn't everyone say so?

Dahlia Lithwick remembers reading Scalia's opinions in law school and while disagreeing with them, still enjoying his style, his zingers, his lively writing amid the dull plodding prose of legal opinions (and they are deathly dull.  Reading legal opinions in law school textbooks can make you want to read the dictionary just for the plot.).  I'm too old to have ever read Scalia's opinions; he was appointed to the bench just before I graduated from law school.  I had to take my pleasures in finding the few cases in the books by Learned Hand or Benjamin Cardozo, judges who taught me what it meant to truly understand the law and its place in human society.  Cardozo and Hand wrote with wisdom, with compassion, with understanding for the complexities of human experience, the limits of human reason, the need to bend the law to fit the human condition.

Above all, they wrote with blazing intelligence and humble hearts.  Scalia didn't hold a candle to them.

There's much speculation Scalia will be remembered by history.  I can't join in these accolades.  The true giants, the ones who stand head and shoulders above the rest, are few and far between, and are seldom lauded by the many-headed.  People still admire Holmes (they made a movie about him!) although his legal opinions are hardly the stuff of legal history, and some are bluntly offensive (as in his defense of eugenics laws) or the completely misunderstood admonition against shouting "FIRE"! in a crowded theater.  No one quotes Cardozo or Hand, but their legal opinions are Olympian and worthy of study of what humans can achieve.

Scalia's legacy is Citizens United and Bush v. Gore, and the "broccoli argument" in the first ACA suit.

I rest my case.


  1. I admit to having enjoyed a number of his zingers over the years, if only because I am a student of pith. Not the best legacy one might have...

  2. "Originalism was never a judicial philosophy nor even a coherent set of reasons for statutory or Constitutional interpretation."

    I don't know if I'd agree with you on that. "Original intent" of course is a historical question, and there's no clean, objective history that everyone will sign off on. But I think it can be approached closely enough to provide some guidance.

    The problem, as I see it, is that of course contemporary problems and circumstances may require us to move beyond the original intent of the framers. The question is, how should the constitution be changed, by the court or by the people through the amendment process? We've make the constitution into something so sacrosanct that we're almost afraid to amend it, and we've therefore pretty much acquiesced in the court updating it for us in those areas where the people are plainly not fit to decide. It's pretty clean and quick, but it's hardly democratic.

    My view of Justice Scalia is probably too mixed and mixed-up to go into here (assuming anyone cares, of course). But I would say his very worst opinions were those in which he departed from his own principles. I am thinking first and foremost of Bush v. Gore, where the Constitution pretty plainly leaves controversies about the electoral college with Congress. Also the Smith opinion, which was originally excoriated across the board, but which now has somehow become the "liberal" default.

  3. I approach interpretation from a hermeneutic formed by my legal education, my seminary education, and my knowledge of literary theory.

    Which is not to lay down a marker, or brag, or puff myself up. It's just that I've spent most of my adult life working on interpretation in one field or another, and the praise for Scalia's "originalism" strikes me as the ignorant praising the eloquent (you don't have to agree with me, and I don't mean you are wrong in your disagreement).

    I never found any depth to Scalia's originalism. It wouldn't stand up as a literary theory in a graduate seminar in English, or even in an senior English class. As a hermeneutic, Biblical scholars and textualists would roll their eyes. As legal theory, it alway struck me as threadbare and entirely opportunistic (that is, used as it suited Scalia's prejudices, and quite nakedly so). I contrasted him (here or somewhere, I can't recall where now) with Learned Hand and Cardozo because their opinions, while undoubtedly reflective of their preferences, were deeply and profoundly reasoned; which isn't to say I always agreed with them.

    Scalia's opinions, to me, were largely the product of a mind convinced of the rightness of it's opinions, considered those opinions as conclusions, and applied them bluntly and stolidly to almost every case it encountered. I read anecdotes, after his death, about how much Scalia liked argument; it was clear from them he enjoyed proving himself right, not in learning from others in a clash of ideas.

    I never considered him anything more than an ideologue. Of course, I could be wrong. ;-)