I published a rather critical Op-Ed about Justice Scalia in today’s Washington Examiner.
This morning when I arrived at chambers, I dropped a case of water on the floor. Somehow, the case bounced up and hit a table in my office. The table shook, and a pictureframe, containing the photograph of Justice Scalia and me, and a Constitution Scalia autographed, came crashing to the ground.
Karma?
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.
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.
Sigh. :end Sent from my Verizon Wireless BlackBerry
Today Jess Bravin wrote a fine piece in the WSJ about the odd bedfellows McDonald has generated.
In one section, Bravin suggests that Scalia intimated that the Second Amendment places no limitations on the states ability to limit ownership of arms:
In a 1997 book, “A Matter of Interpretation,” Justice Scalia wrote that he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.” Yet, this next passage gives court watchers some pause. “Of course,” Justice Scalia continued, “properly understood, it is no limitation upon arms control by the states.”
Damon Root has a great piece at Reason responding to this point, and he beat me to the punch, largely by graciously citing Pandora, and calling it a “superb article.” Root wrote:
The issue facing the Court in the Chicago gun case, however, is not simply what the Second Amendment means, but “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” So what actually matters is Scalia’s view of incorporation under the 14th Amendment. That’s where things get interesting. As the legal scholars Ilya Shapiro and Josh Blackman note in their superb article “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” Scalia has yet to vote in favor of incorporating a right against the states via the 14th Amendment’s Due Process Clause.
But, I’d like to elaborate a bit on Damon’s point. Scalia wrote that the Second Amendment does not place a limitation on the states. That is correct. The only element of the Constitution that places a limitation on the states is the Fourteenth Amendment. As Ilya and I argue in Pandora, the Privileges or Immunities Clause should be the clause relied upon to extend the right to keep and bear arms to the states. But what the 14th amendment extends is not the Second Amendment, as written. Rather, it refers to the pre-existing natural right of self defense of person and property embodied in the Privileges or Immunities of Citizenship. In that sense, the Second Amendment, as in the text ratified in 1791, places no limitations on the states. What actually counts is this external right to bear arms. And this right is among the privileges or immunities of citizenship. So what Scalia wrote is entirely consistent with using the Privileges or Immunities Clause to extend the right to keep and bear arms to the state.
Further, what is important to remember is that the Justices need to consider Originalism at the Right Time. The relevant time period to consider is Reconstruction, when the 14th amendment was ratified, not the revolutionary period. Scalia’s quote is in response to Tribe’s argument espousing the collective model of the Second Amendment. Nino cites lots of sources explaining the right to keep and bear arms from the Colonial era, including Professor Joyce Malcolm’s classic, To Keep and Bear Arms. None of these sources in the slightest bit bear on the question presented in McDonald v. Chicago.
Since my copy of A Matter of Interpretation is autographed, my understanding is certified to be correct.