The other day I queried what topic Justice Stevens would opine on his address at the University of Georgia. The conference was on the First Amendment and NY Times v. Sullivan, so I predicted that he would talk about something germane to free speech. Well, nope. Because he had to talk about something he hasn’t weighed in on. Originalism! I suppose there is no requirement that he actually talk about the topic of the conference. Not like free speech is salient, or anything now.
The address is here. This trend is really, really tiring.
And right off the bat, he goes after Justice Alito (and those who joined his opinion, including Scalia) for relying on substantive due process to incorporate the Second Amendment:
Presumably General Meese’s criticism of the doctrine of incorporation would apply to Justice Alito’s recent decision to rely on substantive due process rather than the Privileges or Immunities Clause as the basis for holding that the Second Amendment limits the power of the City of Chicago to control the sale and use of handguns.
Stevens is absolutely correct. As I wrote with Ilya Shapiro and Alan Gura in the Cato Supreme Court Review, Roberts, Scalia, Kennedy, and Alito turned their backs on originalism when they sought to extend the right to keep and bear arms to the states through due process (something Scalia has criticized at length) rather than through the Privileges or Immunities Clause. Only Justice Thomas was faithful to originalism in McDonald.
Then, shocker, Stevens proceeds to criticize Scalia’s opinion in Heller, and in particular for his focus on reliance on post-enactment legislative history. Judge Posner made the same claim in Round XI of his ongoing feud with Scalia. Stevens and Posner must be sharing notes. Garner responded to this charge. Scalia called it “a lie.” Then Judge Posner put out a correction in response. I found that Posner’s charge (and now Stevens’s charge) was wrong. Why? Because SCALIA CITED THE POST-ENACTMENT HISTORY IN RESPONSE TO STEVENS. I go through the details in this post, but needless to say this charge is weak. In short, the post-enactment statements were evidence of original meaning that Scalia used to rebut Stevens’s poor use of original intent.
But what’s interesting, is that Stevens defends *his* version of originalism:
In other words, I applied what I think of as the original version of the jurisprudence of original intent rather than the modern version.
It’s funny. In 2008 I wrote an article criticizing Stevens’s approach to originalism, titled Originalism for Dummies. In short, I argued that he was applying old originalism (original intent) rather than new originalism (original meaning). Randy Barnett made a similar point in this Op-Ed. It’s stunning that he would justify a form of originalism that has been entirely displaced. I question in my article if he was totally unaware of the changes in originalism in the last 20 years. No. Rather, he’s intent to stick with what gives him better answers.
Stevens proceeds to:
Identify some of the problems associated with the use of history when interpreting legislative text, and explain why a particularly lucid comment by Justice Scalia in a statutory construction case may well provide more guidance to judges confronting novel constitutional issues than the so-called Jurisprudence of original intent.
“Particularly lucid?” Is that to suggest that most of Nino’s comments are not lucid? This is really, really petty.
Then he spends several minutes talking about “Gone with the Wind” to illustrate the point that judges should not be historians. Or something like that. I stopped reading when he turned to Tammany Hall.
I would’ve preferred a talk on NY Times v. Sullivan. Like Adam.
@JoshMBlackman I'd rather have heard about Times v. Sullivan (the ostensible subject of the conference and another Scalia bete noire)
— Adam Liptak (@adamliptak) November 6, 2013
H/T Adam Liptak