Originalism, an “Enduring” (i.e., Dead) Principle of Constitutional Law

Red_Adler Planetarium_2012-08-03

2016-02-16 – You hear snippets when you’re in the car. The snippet I want to tell you about was a guy denying that Justice Antonin Scalia’s constitutional viewpoint was based entirely on the Constitution. His Catholic faith and his personal views had nothing to do with it. I wish I knew who said it so I could tell you. I don’t. I wish I knew who said it so I could talk back to him.

The problem is that my anonymous radio voice totally misunderstood the nature of the legal mind—particularly the nature of a brilliant legal mind.

The whole point of legal training is to ground advocacy in “the law.” You represent clients and you have to tell courts that your clients have “the law” on their side. You have an outcome in mind and you create legal arguments to support that.

Over time, if you repeatedly represent the same types of clients, you win yourself over. As they say, the best liar is the man who doesn’t even know he’s lying. Before long, the lie becomes a legal theory. And if you’re brilliant, the lie becomes an important legal theory.

Now bereft of its original advocacy and infused with Constitutional jibber jabber, the lie becomes important Constitutional theory. The original advocacy remains, but we don’t talk about that. The man’s a scholar and a gentleman. Especially when he’s died.

The problem is that he was in the wrong career. A court is for judges, not advocates. Conservatives are always telling us this, but their greatest hero was an advocate, not a judge. He should have litigated for his favorite causes. Or gone into politics.


That was his theory. In spite of clear intentions of the founders to create a Constitution that is a living document, he pronounced it dead (he literally said that, but quickly said that a more polite term would be “enduring”).

People wonder why many justices of the Supreme Court who started their careers as conservatives, eventually drifted to the liberal side of things. The reason is that they pledged allegiance to the Constitution and the Constitution is essentially a liberal document.

Of course, it didn’t start out that way. In the beginning, it was only partially liberal—but with glaring gaps. Over the years, however, many of those gaps were remedied. A Bill of Rights was adopted. Slaves were freed. Equal rights became the foundational law of the land. Women were given the vote. And so on.

Not everyone got this message. Only the judges. Not the advocates on the Court.

Every case that comes to the Supreme Court has two sides. This is not humanistic philosophy. It is literally true. Each case has a plaintiff and a defendant. And every plaintiff and every defendant has a lawyer as their advocate.

It is the advocate’s job to ground their advocacy in “the law.” And they’ve done a pretty good job of it or they wouldn’t have gotten as far as the Supreme Court. Plaintiffs have one Constitutional principle and Defendants have an opposing Constitutional principle.

And it is a Supreme Court justice’s role to decide which of two opposing Constitutional principles should prevail. For the most part, the Constitution itself doesn’t tell you how to reconcile conflicts of this type. If anything, the ninth amendment suggests that the people prevail over the government—not really much to go on. Beyond that, it’s judge made law and precedent based on how hundreds of cases have been decided.

It’s a process that didn’t set well with some people. One of those was Antonin Scalia, an advocate and an enduring justice of the Supreme Court.

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