Let me say in support of Professor Franck that the problem with Scalia's use of originalism in Lawrence and elsewhere is not that Taney's opinion in Dred Scot makes arguments against living constitutionalism of the sort that Scalia makes in Lawrence. Taney also makes historical, textual, structural and precedental arguments; that does not mean that these sorts of arguments are thereby forever tarred with the evils of Dred Scott because they appear in Taney's opinion.
Rather, the problem with Scalia's use of originalism is twofold: First, it is often badly done, which is the point that Professor Franck makes about Taney's originalism: Both Scalia and Taney do questionable history in order to achieve a political conclusion that each likes. Then each of them has the nerve to insist that any other way of interpreting the Constitution is illegitimate and, in Scalia's case, to denounce and ridicule anyone who disagrees with him.
The second problem with Scalia's use of originalism is that it is opportunistic. Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy, and his favored values. You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases. Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations. But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment's section one, at least as originally understood by its framers. (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed. (See Jed Rubenfeld's 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman's Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them. The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it's unclear how either Scalia or Thomas could have joined the Adarand decision.
At the end of the day, Scalia may be correct that the best translation (in Larry Lessig's terms) of the original understanding is a strict colorblindness rule. But I doubt it, and even if that is so, Scalia refuses to adopt that sort of translation methodology, because it is the very sort of living constitutionalism that he disdains. So he can hardly employ it to justify his position in the Michigan cases.
Stare decisis must temper originalism, and that is how many non originalist decisions like Bolling v. Sharpe (and Adarand) might be justified for an originalist. The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.
At 12:02 AM 8/2/2003 -0700, Automatic digest processor wrote:
Date: Fri, 1 Aug 2003 16:48:05 -0400 From: "Matthew J. Franck" <[EMAIL PROTECTED]> Subject: Re: Scalia's Originalism MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_36475719==_.ALT"
I know Prof. Martin thinks the Constitution has some "status as a treaty." I do not. Federalist nos. 5 and 75 provide no evidence to the contrary. Nor does Ware v. Hylton bear on the issue he raises; it had to do with the supremacy of the Treaty of Paris (1783) over a law of Virginia.
Scalia is quite right to disdain rulings of the European Court of Human Rights as relevant to American constitutional questions. Article VI identifies three sources of "supreme law": the Constitution, acts of Congress, and treaties. No treaty to which the U.S. is a signatory obliges our judges, state or federal, to pay the least bit of attention to the rulings of the ECHR (thank goodness). Nor does "customary international law" have any bearing on the laws by which Americans govern themselves.
Scalia's "federalism"--I have in mind those cases where the five "conservative" justices band together to defend "sovereign immunity" or tendentious readings of the Tenth Amendment or limits on the commerce power--is lousy originalism precisely because it forgets that the Constitution is not a treaty among the states, and because it rests on an ahistorical view of the proper reach of judicial review.
Matt *************************** Matthew J. Franck Professor and Chairman Department of Political Science Radford University P.O. Box 6945 Radford, VA 24142-6945 phone 540-831-5854 fax 540-831-6075 e-mail [EMAIL PROTECTED] ***************************