Mar 9, 2010

Posted in McDonald v. Chicago

Our Washington Examiner Op-Ed: Is Justice Scalia Abandoning Originalism?

As I have blogged, I was quite disappointed by Justice Scalia’s line of questioning during oral arguments in McDonald v. Chicago. It seems that Originalism is less of a concern for Justice Scalia than obtaining the result he wishes. To that end, I co-authored an Op-Ed with Ilya Shapiro in today’s Washington Examiner, appropriately titled Is Justice Scalia Abandoning Originalism.

Here is a choice segment:

Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.
In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”
Given Scalia’s epic enmity for substantive due process, why would he now turn his back on decades of his own hard labors and suddenly endorse the controversial doctrine? In his own words, because it is “easier.”
Granted, Scalia has been far from a down-the-line originalist. On more than one occasion, where originalism does not achieve the result he wants, he ignores the history and stands by precedent. (Most recently, Scalia voted to uphold the federal power to trump state regulation of medicinal marijuana, even if the drug never crosses state lines.) To explain these variances, Scalia has called himself a “faint-hearted originalist” or an “originalist, but not a nut.”
But if the opinion Scalia joins in McDonald matches his signals at argument, the justice will no longer be able to call himself an originalist of any kind. He will have to turn in his O-card and leave Clarence Thomas as the only originalist on the Court. (Not coincidentally, Thomas is the only justice on record as favoring a revival of the Privileges or Immunities Clause.)
The Court has nearly four months before it issues its McDonald opinion. We can only hope that the straying Saint of Originalism returns to the catechism he has taught so well.

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  • steve rappoport

    This was an oral argument, not a ruling. Why not wait to see what he signs onto before condemning him?

    • Josh Blackman

      As we indicate in the last paragraph, Scalia still has a few months to vindicate himself. But, based on witnessing first hand the oral arguments, I am not optimistic.

  • steve rappoport

    Scalia may be a believer; he is just not a true believer.

  • Soren

    Excellent article Josh.

  • A fan

    “My Washington Examiner Op-Ed…” implies sole authorship, you point out it is co-authored in the body text, but a casual (and perhaps skeptical) reader such as an appointments committee might think you are taking a bit too much credit for yourself.

    A minor point, but it speaks to a broader issue. You *really* need to focus on framing your great accomplishments/writing in non-self referential, gratuitous self promoting ways or you are going to get devoured in the FAR process.

    Strike 1- Conservative
    Strike 2- Self Promoting
    Strike 3- JD

    You can hide 1 a bit, or accept it as a strike, you can easily shift your JoshCast, JoshBlog, JoshVlog, I, Me, My approach to writing to eliminate strike 2. Finally, while you can’t change strike 3 you can write your way out of it, but no amount of law review articles will correct for personality issues associated with an appearance of arrogance. Even worse, it’s the kind of critique that will stick for a long time, and just a few people can start to stick you with that reputation.

    If you really want to be an academic you need to start getting in that mindset now, play the part, and exercise some self protective discretion. Some people can buck the system and succeed, most fail. The goal is to give no reasons to ding you, and every reason to hire you. Don’t give potential opponents easy ammo!

    Feel free to delete this comment after you read it, I hope you’ll take this advice!!

    • Josh Blackman

      Dear Fan,

      Thank you for your thoughtful comment. No I won’t delete it. It is a valid critique, and I will attempt to address your concerns, as you are not the only one to address them to me.

      I just updated the post title to reflect the co-authorship. That was inadvertent, and I meant no slight to my esteemed co-author.

      I agree with you about Strike 1. Though I would label myself as more libertarian than conservative, I doubt most appointments committees know or care about the distinction. Not much I can do to hide from that. Though if anyone takes the time to read my work, I would hope they find that I am not an iconoclast, partisan, or ideologue. As this critique of Scalia indicates, I’m not afraid to call out the RIght when I think they’re wrong. In fact, I’ve gotten quite a lot of flak from my conservative friends, and praise from my liberal friends, as a result of this piece. But, I agree that appointment committees may not care much about this distinction.

      As for Strike 2, I concur with your fears, and I do not want to come off as arrogant. If you ever meet me, or speak with people who know me, I am sure you will find that I am not arrogant or pretentious. I take my work very seriously, but recognize I’m just some 25 year old with a blog. Unfortunately, people confuse self-promotion with arrogance, so I will have to contend with that.

      The aim of this blog, and my other activities, is not only to prepare me for the Meat Market. I have some pretty broad career goals, which I am not going to lay out in great detail here. Though my initiatives with the Harlan Institute, which I am very excited about, paint a picture of where I want to take my career. In the next few months, I am launching several major educational initiatives partnering with some big names (Stay Tuned). I already employ several interns at the Institute, and am looking to fund some paid positions this Summer. In many respects, my self-promotion skills will, I think, help me get where I want to go. In a short period of time, I have been able to gain some notoriety, and support, including donations, for my programs. Had I taken the more conventional path, I am not confident I could have achieved these same goals.

      To the extent that these attributes preclude my ability to be hired at a Law School, then perhaps an academic career is not my best option. As a George Mason grad, I would be remiss if I did not discuss comparative advantages and specialization of labor. If my comparative advantage prepares me for a career outside the academy, then that may be where I go. If, despite my shortcomings, I can obtain an academic position while leveraging my comparative advantages, then I will be in a much stronger position to make a difference in many aspects of society.

      As for Strike 3, there is not much I can do, other than write as much as I can, as you indicate (and I intend to keep writing ferociously). I am proud of my GMU education, and of the Professors who taught me. Perhaps an Ivy League LLM is in my future, though I don’t know if giving Yale or Harvard $50,000 and a year of my life will do much to assuage hiring committees bent on hiring from HYS. I could be wrong.

      I appreciate your concerns, and you are not the first person to address these to me. I have given them significant amounts of thought.

      I suppose the proof will be in the pudding. I’ll have to revisit these thoughts in a number of years, and see where I am. I may blog a bit more about this.


    • steve rappoport

      I have gotten to know Josh a little, and I think that I am qualified to comment on a fan’s remarks.

      1. I too have wondered a bit about Josh’s penchant for giving us a peek into the Joshworld, but it is his blog, and he seems to do an awful lot quite well simultaneously. Tying “Josh” to everything is sort of a game (a Joshgame, as it were); it is almost a brand. If I were he, I would not focus so intensely and publicly on my accomplishments, perspectives, presentations, background, and the like, but he has a different focus. If you read this blog regularly, you may notice that I sometimes use that focus to help him see a little differently.

      2. He is not arrogant; he is a go-getter. He has an expansive imagination and more energy than your run-of-the-mill nerd; he wants to do everything and get it done now. He can come across as brash, at least here, but from what I can tell, he knows how to play with others. (I admit that I do not know how he would react in an ideologically uncomfortable situation.)

      3. That said, there is a lot of wisdom, as well as career advice, in a fan’s comment.

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  • Jim Amberger


    Might Scalia simply be concerned about making the P & I clause available for the same sort of abuse that the due process clause has underwent?

    Perhaps he is choosing to stick with the devil we all have come to know. Like some of the other commenters, I’m not yet ready to brand him an apostate.

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