Bench Memos

Joan Biskupic’s Biography of Justice Scalia—Part 2

Justice Scalia’s influence derives heavily from his promotion of the interpretive methodology of “original meaning,” which holds that the various provisions of the Constitution are to be interpreted in accordance with the public meaning they bore at the time they were promulgated.  Joan Biskupic of course recognizes the central importance of Scalia’s originalism (as her title American Original indicates).  But her book does not present clearly what Scalia’s original-meaning methodology is, nor the arguments that Scalia has made on its behalf.  (If she draws at all on Scalia’s A Matter of Interpretation, I missed it.) 

In her prologue (p. 4), Biskupic describes Scalia’s originalism as “insisting that judges should render constitutional decisions based on the eighteenth-century understanding of the text” and contrasts it with Chief Justice Earl Warren’s “interpret[ing] the Constitution to contain broad principles that could be applied to modern circumstances.”  The trusting reader is left to puzzle over how, say, the post-Civil War Amendments could be construed “based on the eighteenth-century understanding of the text” and to infer mistakenly that the Constitution, under an originalist interpretation, can’t “be applied to modern circumstances.”  The real divide between originalism and the misnamed “living Constitution”—over the breadth of play that the Constitution gives to the democratic processes to adapt policies to new conditions—is left obscure.

Similarly, in her next foray (p. 87), Biskupic recites the cliché that proponents of the “living Constitution” believe that “it evolve[s] to fit the needs of a society in every era,” while the originalist’s Constitution is “fixed by its eighteenth-century perspective.”   Biskupic doesn’t take note of the inconvenient fact that the Supreme Court’s invention of new rights that entrench the current elite’s policy preferences deprives future generations of the very adaptability that living constitutionalists claim they favor, whereas the originalist’s refusal to invent those new rights preserves that adaptability. 

A bit later (p. 125), we’re told that Justice “Brennan’s approach—tied to the ‘essential dignity and worth of an individual’”—was “worlds apart” from Scalia’s.  The reader might naturally imagine that Scalia’s approach is opposed to the “essential dignity and worth of an individual,” when in fact the real difference between Brennan and Scalia relates to whether justices have freewheeling authority to impose their own subjective views of which policies advance that goal.

And so on.

I don’t mean to contend that an alert reader might not be able to find some passages—including some quotes from Scalia (e.g., pp. 117-118)—that give a better sense of what his originalism is.  But Biskupic doesn’t make the task an easy one.