Originalism, Justice Scalia’s method of constitutional interpretation, has recently been caricatured as backward-looking and incapable of dealing with evolutions in American society. This caricature could not be further from the truth. Though his feet were anchored firmly in the past, Scalia’s eyes remained focused on the present and the future. He understood that the Constitution provides an “enduring” blueprint for democratic government that remains as relevant as ever today.
That blueprint generally comprises broad precepts rather than specific policy prescriptions. It endures because those precepts – as originally understood – can be applied to modern-day dilemmas. The Fourth Amendment, for example, protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Those words as originally understood provide no less guidance today, when applied to criminal cases the founders could not have imagined, than they did in 1787.
In Kyllo v. United States, Justice Scalia wrote that the warrantless use of a thermal imager to “see” inside of a house constituted a search under the Fourth Amendment. “It would be foolish to contend,” he wrote, that emerging technologies had not affected Americans’ Fourth Amendment rights. Police, Scalia acknowledged, now had the means to intrude on citizens’ privacy in ways no one dreamed possible at the time of the founding. But recognizing such developments did not require him to dispense with originalism and decide the case by referring to his personal preferences. Instead, he framed the question as identifying the constitutional limits “upon this power of technology to shrink the realm of guaranteed privacy.”
In other words, Scalia asked what impact the new technology had upon the rights secured by the Fourth Amendment as those rights were understood at the time of the founding. He concluded that the original understanding of the Fourth Amendment prohibited police from obtaining certain information from the interior of a home. To the extent that thermal imaging allowed police to obtain the same information, it violated the Fourth Amendment.
That holding did not require veering from the Constitution’s original meaning. In fact, it preserved “that degree of privacy against government that existed when the Fourth Amendment was adopted.” Any other holding would “permit police technology to erode the privacy guaranteed by the Fourth Amendment.”
This is not the only thing Justice Scalia’s critics get wrong. Another caricature of originalism states that its practitioners are indifferent to the real-world consequences of their decisions. When a judge ignores the law in order to achieve a “better” outcome, of course, his decision becomes incompatible with a democratic government in which the people hold the ultimate authority to enact statutes. But that simple fact notwithstanding, the complaint fails on its own terms. While it is true that originalist judges do not consider whether they favor the particular outcome in a given case, they maintain that originalism produces the best results, because it faithfully preserves the structure of our constitutional republic.
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For example, in Morrison v. Olson, Scalia dissented from an opinion upholding the creation of an office that was nominally a part of the Executive Branch but operated largely outside of presidential control. He argued that the creation of such a position violated the constitutional separation of powers by diminishing the power of the President.
#share#The Framers did not merely rely on listing the government’s enumerated powers and citizens’ protected rights. They established a structure of government under which it would be difficult for one branch of government to gain enough power to dominate the other branches and the American people. They balanced power between the branches by giving each branch strengths and weaknesses that would deter it from seeking to dominate the others, while also allowing it to defend itself from domination.
Justice Scalia feared that the majority’s ruling was based on its personal views and the political exigencies of the day rather than any coherent view of the proper balance between the branches of government. If the Court continued to rule on such issues without adhering to the Constitution’s original meaning, the delicate balance between the branches would be put at risk. Scalia would have preferred to “rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound.”
Scalia determined that applying a consistent and democratically legitimate judicial philosophy would produce the best systematic results.
One can agree or disagree with his specific critique – Congress did not renew the office at issue once its term expired – but one cannot doubt that he considered the real-world consequences of his decisions. He determined that applying a consistent and democratically legitimate judicial philosophy would produce the best systematic results even if he did not approve of the outcome in any particular case.
Originalists also maintain that if courts function like super-legislatures, the American people will treat them as just another political branch and imperil the Judiciary’s constitutional role as a neutral arbiter of the law.
Justice Scalia spoke to this fear in his dissent in Casey v. Planned Parenthood. He noted that ideally the Supreme Court should perform what is “essentially lawyers’ work,” by “reading text and discerning our society’s traditional understanding of that text.”
As long as the Supreme Court functioned in that manner, it would escape politicization and play its intended role. But as soon as the Court began using its own value judgments to answer political questions, the American people would treat it as a third political branch.
#related#“Value judgments, after all, should be voted on, not dictated,” Scalia wrote. “And if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”
Neutral and apolitical courts whose decisions are respected by the populace play an important role in American democracy. If they fail to uphold that role, democracy suffers. Anyone following the contentious confirmation battle surrounding Justice Scalia’s successor knows that America has traveled a great distance down this dangerous road. But there is an off-ramp that would allow the country to return to the constitutional structure that has worked so well for over 200 years – a judicial philosophy known as originalism. A judicial philosophy championed by Antonin Scalia, who was more forward-looking than any of his critics will ever admit.
— Howard Slugh in an attorney practicing in Washington, D.C.