November 16, 2004

Scalia's originalism

I was lucky enough to hear Justice Antonin Scalia speak today. One of his arguments was that the Supreme Court has become so politicized because of the pernicious view of many Justices that the Constitution is a "living document" and that its meaning changes with the times. I'm curious about how far this argument goes.

Justice Scalia defends "originalism" as superior to any other constitutional interpretive philosophy. In fact, Scalia hints that there is no other such philosophy--every non-originalist approach is merely an unprincipled picking-and-choosing of whatever seems to make sense to a judge on any particular day.

Originalism has a lot to recommend it; but like every other interpretive approach, it must deal with the reality that the outcome of many cases is underdetermined by the law. In many disputes, there may be no one "right answer" compelled by existing law, leaving the judge free to choose from among several (often conflicting) rulings.

Scalia says that judges ought to interpret the Constitution to mean what it meant when it was written. That's fine, as far as it goes, but this technique doesn't turn all hard cases in 2004 into easy ones. Even if you're right about what the Constitution means, the text of the Constitution won't determine the outcome in every constitutional case. For example, would the constitutional prohibition on unreasonable searches and seizures apply to the government's copying the files on your hard drive? Have they "seized" anything tangible here? (I'd like to acknowledge the place where I got this example, but damn--I can't remember.) The point is, even originalist judges are going to have to rely on something other than written law to decide hard cases.

The interesting question is, where should they look? Precedent would be good, but it's not always slam-dunk. Same goes for legislative history, or agency interpretations. The truth is, there's no one particular philosophy of constitutional or statutory interpretation that will relieve a judge from having to exercise a personal choice among outcomes. That's why they call it judging.

Even if the entire Supreme Court were packed with Scaliaesque originalists, the values and political preferences of each judge would still matter. They might matter less than if the Court were packed with "evolutionists" and non-originalists, but they would never be wholly irrelevant.

Does originalism render the values and political preferences of judges irrelevant enough to abandon a close political scrutiny of high court nominees? I'm not sure that it obviously does.


As an aside, if I were Heidi I would not liveblog Scalia's Q&A tomorrow. But that's mostly because I would be distracted by the blogging, and I would really want to be listening. But I'm not Heidi. So all I'll say is, if Heidi wants to liveblog and she's sitting next to me, I wouldn't be distracted by her typing. HTH.

Posted by Carey at November 16, 2004 09:08 PM