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.

Jack Balkin

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;

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

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.

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

Reply via email to