Justice Scalia Jumped the Originalism Shark in McDonald
Jumping the Shark is an “idiom used to describe the moment of downturn for a previously successful enterprise.”
After 48 hours of defrosting and resting from my camp-out at SCOTUS, I am left thinking that Justice Scalia’s arguments at McDonald v. Chicago represent the moment he jumped the Originalism shark.
For years, he has described himself as a “faint-hearted” originalist, or “an originalist, but not a nut.”
Many characterized his opinion in Gonzales v. Raich as highly hypocritical, in that he turned his back on Originalism for policy reasons (See e.g., Randy Barnett’s essay, Scalia’s Infidelity).
I have no doubt Scalia does not like modern commerce clause jurisprudence, but this was never his strong suit. It is worth noting he never joined Justice Thomas’s concurring opinions in Lopez and Morrison. So, I don’t think he quite jumped the shark in Raich, as disappointing as it was.
I contend that the arguments in McDonald represent the moment Scalia jumped the shark.
For over two decades on the Court, Scalia has railed against substantive due process. I need not cite the numerous caustic dissents arguing that substantive due process is the greatest threat to our rule of law.
The Supreme Court last considered incorporation through substantive due process in 1982, four years before Justice Scalia joined the Court. Originalists like Justice Scalia are loath to enlarge substantive due process. Stuck between a rock and a substantively hard place, what should they do? This was the perfect opportunity to get it right.Reinvigorating the Privileges or Immunities Clause presented an ideal opportunity for the Court, and Scalia, to restore the original meaning of the Constitution, and scale back the wayward warped doctrine of substantive due process.
As I wrote in Pandora’s Box:
Originalists stand at a unique vantage point. Without the Privileges or Immunities Clause, they must continue extending the un-originalist notion of incorporation via substantive due process to protect the right to keep and bear arms. In other words, to give meaning to the original meaning of one constitutional provision, the Second Amendment, they must further warp the original meaning of another, the Fourteenth Amendment.
But, Justice Scalia would rather take the “easier” approach and perpetuate substantive due process rather than be “original.”
At least Scalia’s robe looks cooler than Fonzie’s leather jacket.