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The Absurdity Of Originalism

(Boston Herald cover, March 30, 2006)

(Boston Herald cover, March 30, 2006)

Hey, remember when Obama made the grievous error of mentioning empathy as a desirable quality for Supreme Court Justices and conservatives jumped all over him and said judges should abide solely by the plain letter of the law?  Maybe someone should have told Nino Scalia before he talked to California Lawyer:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.

And here is what the 14th Amendment says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I don’t see anything about “men” specifically, much less heterosexual men.  Just “citizens” and “persons,” which encompasses both women and LGBT people.  Perhaps Nino thinks those words only apply to corporations and straight white guys.

So even though he’s motivated by the opposite of empathy, Scalia is using the conservative crutch of “original intent” to do the exact same thing the right accused Obama of praising: reading in additional meaning that is not in the actual words.  He may very well be right that the 39th Congress didn’t have women or gays in mind when they wrote the 14th, but so what?  The text is what it is, and it says that all persons shall have “the equal protection of the laws.”  Seems pretty clear-cut to me, but I guess the letter of the law only trumps the spirit when it comes to loopholes for corporate looters and big campaign donors.

But even if you engage originalism on its own merits, Scalia is still a fraud.  On the one hand, he argues that women and gays aren’t entitled to equal protection because the authors of the 14th Amendment didn’t have them in mind.  Yet on the other, he is perfectly willing to pretend that when the framers wrote the 2nd Amendment, they were thinking about what an awesomely well-regulated militia we would have if criminals and separatist crackpots could pick up deadly weapons at gun shows and carry them around everywhere.

Not only that, but he also believes that the Founding Fathers actually wrote the 1st Amendment with the express desire that one day giant corporations would be allowed to use shadowy front organizations to spend hundreds of millions of dollars to get their servants into public office.  Oh, and that they believed very strongly that those giant corporations should be considered people (unlike women and Teh Ghey), even though they somehow neglected to mention that in the Constitution or anywhere else.

Originalism isn’t about discerning the intent of the long-dead authors of laws, it’s about pretending that their beliefs just happen to coincide with your own, and then pretending that that overrides the letter of the law whenever that happens to be more convenient for you.  Which I’m sure is a very valuable lesson that Scalia will be teaching the Tea Party congresscritters in that little Constitution class which Insane Nonperson Michele Bachmann asked him to preside over.

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