Mar 4, 2010

Posted in McDonald v. Chicago, Uncategorized

Justice Scalia Jumped the Originalism Shark in McDonald

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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.

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  • http://www.southernappeal.org Alberto Hurtado

    I’m not sure how to categorize Scalia on the issue of precedent. I think Scalia seems inclined to overturn precedent only when it is “really, really bad” or when chopping precedent down doesn’t destroy a whole, “major” line of jurisprudence. Substantive due process is a pretty big line of jurisprudence. Scalia’s rather sarcastic quip indicates to me that he is either completely dismissive of P/I arguments or simply, he finds them compelling but doesn’t even want to venture down that path because of its implications. Remember for Scalia the spirit of the law is its logic. The fact he so blithely dismissed the argument was surprising.

    My own speculating is that Scalia is now acting like a repeat-player on SCOTUS. He knows Roberts has a stated aversion for overturning precedent, favoring a minimalism if “it gets the job done.” He wants to present to Roberts a willingness to go along with that minimalism on cases where the reason to overturn the precedent isn’t slam-dunk (as in the instant case) in exchange for hopefully pulling Roberts along a little more in cases where the grounds to overturn precedent are a closer call (as in the recent campaign finance case).

    Of course, from a philosophical perspective, this assumes that Scalia is more interested in originalist outcomes than originalist methodology. I suppose in an imperfect world, that’s not bad. As lawyers we know the method can have as many (if not more) consequences as the final result. So there we quibble with Scalia. But then again, we have the luxury to do so. He doesn’t.

  • http://www.andrewhyman.com Andrew

    Well, if Justice Scalia was jumping the shark on March 2, then I think you and Alan Gura were doing so too, Josh.

    To any normal person, the phrase “privileges or immunities of citizens of the United States” cannot possibly mean something that the federal government is free to violate. And yet that is exactly what Mr. Gura argued, when he contended that this phrase includes a right to contract and a million other things that do not already apply against the federal government.

    The Second Amendment DOES already apply against the federal government, but Gura never made that distinction, nor have you, nor has Gura. So, shame on everyone who jumped the shark in this case.

    As Senator Jacob Howard put it, the rights that come within the Privileges or Immunities Clause were rights that prior to 1868 “were secured to the citizens solely as a citizen of the United States and as a party in their courts.” Things like the right to contract and the right to sue were NEVER secured to the citizens as a citizen of the United States and as a party in their courts. Howard only suspected otherwise because SCOTUS had not yet specifically addressed the scope of Article IV, Section 2 (which the Court definitively did in 1869 when it decided Paul v. Virginia).

    To put it simply, Barnett, Gura, and yourself have jumped the shark right along with Scalia, IMHO. Now it appears we may be stuck with substantive due process forever.

  • http://www.andrewhyman.com Andrew

    Well, if Justice Scalia was jumping the shark on March 2, then I think you and Alan Gura were doing so too, Josh.

    To any normal person, the phrase “privileges or immunities of citizens of the United States” cannot possibly mean something that the federal government is free to violate. And yet that is exactly what Mr. Gura argued, when he contended that this phrase includes a right to contract and a million other things that do not already apply against the federal government.

    The Second Amendment DOES already apply against the federal government, but Gura never made that distinction, nor have you, nor has Barnett. So, shame on everyone who jumped the shark in this case.

    As Senator Jacob Howard put it, the rights that come within the Privileges or Immunities Clause were rights that prior to 1868 “were secured to the citizens solely as a citizen of the United States and as a party in their courts.” Things like the right to contract and the right to sue were NEVER secured to the citizens as a citizen of the United States and as a party in their courts. Howard only suspected otherwise because SCOTUS had not yet specifically addressed the scope of Article IV, Section 2 (which the Court definitively did in 1869 when it decided Paul v. Virginia).

    To put it simply, Barnett, Gura, and yourself have jumped the shark right along with Scalia, IMHO. Now it appears we may be stuck with substantive due process forever.

    • Josh Blackman

      Andrew, that fact that you accuse me of jumping the shark implies that at one point, I got something right. In the world of snarky blog comments, I will take that as a compliment. Many thanks.

      • http://www.andrewhyman.com Andrew

        I had thought that yours was a serious blog post. So, I wrote a serious comment that was not meant to be snarky at all. My mistake.

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