Bench Memos

Law & the Courts

Justice Stevens, Embalmed?

In a very dull speech last week entitled “Some Thoughts About a Former Colleague,” semi-retired Supreme Court justice John Paul Stevens offered some reflections on Justice Scalia. I’ll limit myself to one set of observations.

Expressing his disagreement with the role that Justice Scalia believed that originalism should play in constitutional analysis, Stevens closes by approvingly quoting this passage from historian (and notorious fabricator) Joseph J. Ellis:

Jefferson spoke for all the most prominent members of the revolutionary generation in urging posterity not to regard their political prescriptions as sacred script. It is richly ironic that one of the few original intentions they all shared was opposition to any judicial doctrine of ‘original intent.’ To be sure, they all wished to be remembered, but they did not want to be embalmed.

Ellis has amply displayed his cartoonish misunderstanding of originalism before, and he does so again here. And so does Stevens by embracing Ellis’s misunderstanding.

Neither Justice Scalia nor any other originalist takes the “political prescriptions” of the Framers “as sacred script.” Instead, we take their constitutional prescriptions to be binding, except as those prescriptions have been modified by later generations.

Originalists believe that the meaning of constitutional provisions is to be construed according to originalist principles, not that policy decisions within constitutional bounds should be made by asking what the Framers would have done. In other words, originalists recognize that the Framers created a constitutional republic in which citizens over time can, within broad bounds, revise policies to changing circumstances. Originalists don’t look to the Framers, as Ellis has insipidly claimed, for their policy insights on “Iraq, global warming, immigration and the other hot-button issues of the day.”

It is Justice Stevens and other liberal judicial activists who seek to “embalm” their own “political prescriptions” as though they were in the constitutional text. What is “richly ironic” is that anyone—a historian of the founding era, no less—would cite Jefferson in defense of such judicial usurpation.

These larger errors dwarf Ellis’s persistent confusion between “original intent” and the “original meaning” species of originalism that Justice Scalia advocated.

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