Opinion, Berkeley Blogs

Scalia’s blind spot

By john a. powell

Supreme Court Justice Antonin Scalia’s unexpected death on Feb. 13 has not only cast a cloud of uncertainty and speculation over upcoming court decisions this term, but has also thrown a curveball into an already raucous Presidential campaign season. Given the Supreme Court’s precarious ideological balance, a new court appointee would have the potential to dramatically reshape law and the power to settle many of our nation’s most contested issues.

Antonin Scalia
Justice Antonin Scalia (SCOTUS portrait)

For more than a generation, our highest court has been firmly controlled by Republican appointees, with many seminal cases decided by the court’s most moderate Republican appointee, a baton handed off between Lewis Powell to Sandra Day O’Connor to Anthony Kennedy, the so-called “swing justice.”

If there is a Republican presidential win this November, a Republican appointee would cement the court’s current right wing configuration, especially when taking into account that the court’s eldest member is Ruth Bader Ginsburg, a Democratic nominee. If President Obama or a new Democratic president, however, were to nominate Scalia’s replacement, then the court would tip in a new direction that would potentially touch every major issue of our time.

In the last 10 years alone, the conservative court has opened the floodgates to corporate campaign contributions in the infamous Citizens United case, struck down provisions of the critical Voting Rights Act, and curtailed both voluntarily K-12 integration plans and affirmative action in higher education.

A Democratic appointee could hold the power to revisit, if not reverse, these decisions.

More importantly, activists and advocates desiring a more inclusive constitutional reading would be in a position to pivot away from a defensive posture — hoping merely to preserve and defend hard won gains —toward a more proactive stance, able to develop and advance the law to expand the frontiers of constitutional belonging and equality.

With this critically important appointment at hand, it is worth considering one of Scalia’s most important legacies during his court tenure and its limitations. Scalia is perhaps best known as a proponent, perhaps even the forefather, of constitutional originalism, an interpretative methodology that sought to ground Constitutional interpretation in an understanding of the “original intent” of the authors of the Constitution. Scalia’s approach served in part as a rejection of the notion of what Oliver Wendell Holmes called a “living constitution,” whereby the terms within the Constitution, such as “reasonable” (4th Amendment) or “cruel and unusual punishment”(8th Amendment), might change meaning over time, depending on the norms or values of the contemporary society in which it was being applied.

According to Scalia’s very different approach, these terms had definite meaning, fixed at the moment of enactment as understood by their authors. Scalia even acerbically described the Constitution as a “dead” document as a vivid contrast in approach.

Originalism also served as a rejoinder to what many conservatives viewed as judicial overreach in the Warren Court era — specifically, reading rights into the Constitution that are not textually apparent. This includes criticism of Miranda v. Arizona, which requires law enforcement to notify criminal suspects of their rights, Griswald v. Connecticut, and Roe v. Wade, which read rights of privacy into the Constitution and recognized reproductive freedoms that flow from them, respectively. In his dissents, Scalia urged his colleagues to overrule these cases.

Rights image
(iStock image.)

Originalism purportedly offers certainty, clarity, and consistency in constitutional jurisprudence but whether it provides these benefits is an ongoing debate. More importantly, some scholars have questioned Scalia’s consistency in applying an originalist approach, especially where it may have led to results incompatible with his political leanings. Many will point to his decisive role in the controversial Bush v. Gore decision as an example of judicial activism and conservative overreach.

There is, however, a deeper inconsistency in Scalia’s jurisprudence.

Justice Scalia’s full-throated embrace of originalism had a convenient blind spot. He ignored the fact that there were, at least, two different Constitutions. The Constitution of 1789 was very different than the Constitution as amended after the Civil War. The former was designed by and for slaveholders while the latter was far more democratic and inclusive, even if in aspiration. While many of Scalia’s decisions sought to understand the original intent of the authors in 1788 and 1791, he made little such attempt to understand the Reconstructed Constitution of 1870, the document that came after the ratification of the 13th, 14th, and 15th Amendments.

These three amendments, known as the “Reconstruction amendments,” transformed the Constitution and American society by sweeping into full citizenship America’s newly freed slaves, endowing them with new rights, privileges, and freedoms. In a very real sense, these amendments changed the core meaning of “We the People,” by rejecting the infamous Dred Scott decision’s holding that persons of African descent, free or slave, were not, and could never become, citizens of the United States.

President Lincoln prefigured the transformative change wrought by these amendments in his Gettysburg Address, redefining the Civil War as a fight for the identity of the American polity, and called for a “new birth of freedom.” He crystalized that ideal in immortal language of inclusivity, a “government of the people, by the people, for the people.”

In the new Constitution equality ofall people is paramount — meaning not just property owners, and not just whites.

Speaker of the House Paul Ryan has invoked Abraham Lincoln in the current presidential campaign, strongly asserting that the Republican Party is the party of Lincoln. As such, Ryan states that a candidate for President must accept Lincoln’s reminder that our country was dedicated to the proposition that “all men are created equal,” as was asserted in the Declaration of Independence. (Today, all but the most exclusionary among us would understand that phrase to mean “all people are created equal.”)

Lincoln was not just making reference to the Declaration of Independence — his commentary was a reference and critique of the antebellum Constitution as a flawed or at best an incomplete compromise. Through the Reconstruction Amendments the Constitution was remade in Lincoln’s ideal, which introduced into it the inclusive principle of equality.

In the 30 years that followed, however, a reactionary and increasingly conservative Supreme Court eviscerated the original intent of these amendments with pernicious doctrines such as “separate but equal.” While Plessy v. Ferguson was overruled by Brown v. Board of Education, many of that era’s decisions that watered down rights embedded in the Reconstruction amendments remain intact and are still waiting for their proper reading in law as well as in our lived reality.

The Reconstruction Constitution is a wellspring for a project of an inclusive originalism. Many of us who have studied and written on the Constitution for years, such as Akhil Amar and myself, and organizations such as the Constitutional Accountability Center, are engaged in this project, seeking to reveal and uncover the understandings and meanings of the Reconstruction Amendment’s framers.

Justice Scalia’s originalism needs to be viewed in its proper light of being particularly one-sided in its view on the Constitution. Rigid adherence to Scalia’s approach would mean that today’s Court would deny that new birth of freedom where we recognize that “all people are created equal.” This continues to be an American ideal that is radical in human history, and apparently, just as in Lincoln’s time, still contested in certain quarters. But those who want to build an inclusive American future need to reclaim the aspiration of America’s past canonized in our living Constitution.

As Ryan suggests, those who refuse to live the self-evident truth of equality may not be fit to claim the mantle of Lincoln, but they may also not be fit to serve on the highest court of the land.