Antonin Scalia And His Incoherent, Hierarchy-Loving, Theory Of Constitutional Interpretation

I taught Antonin Scalia‘s writings–as found in his court opinions–on three occasions in my philosophy of law class. His theory of constitutional interpretation–originalism–was incoherent. His aggressive rhetoric, directed at those who would dare petition the highest court of the land for redress, was tasteless. He was a bully, and a blowhard. Like Christopher Hitchens, he will be revered by many whose taste runs to the skillful deployment of language for the belittling of others. Among the most frequent targets of scorn were his colleagues on the Supreme Court, who were always unfailingly polite to him, and were rewarded with ample sarcasm and invective. His judgments frequently crushed the weak, denied hope to the condemned (I suspect nothing made Scalia quite as tumescent as denying a stay of execution for someone on death row), and scorned the cries for justice issuing from those who had found themselves on the wrong side of the power equations Scalia found written into the US Constitution.

Because that, in a nutshell, mostly, was Scalia’s theory of constitutional interpretation. Originalism, “the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution,” relies on a wholly imaginary “original understanding”–the attempt to determine and ascertain it convinces, all too soon, those who would so try, that the effort is futile. The best analysis of the futility of such a determination may be found in Paul Brest‘s analysis in  The Misconceived Quest for the Original Understanding. Hint: Whose understanding? Do ratification votes capture ‘understanding’ or do they point to clumsy off-stage power negotiations? And so on.

Originalism, as a political theory of legal interpretation, is generally chosen by those who would like to preserve very particular power relations, those present at the time of the drafting of the US constitution. An ‘originalist’ is a fancy term used to describe those who would prefer the world of 1787, and all the limited political and moral understandings that underwrote its legal arrangements. Those original relations, which did not acknowledge or recognize slavery or the political rights of women, eminently suit the continued maintenance and perpetuation of very particular hierarchies of power.

Those are the ones Antonin Scalia wanted to preserve. He was a true-blue conservative, a hierarchy-loving reactionary who shivered when he contemplated the masses rising up –in any shape, form, or fashion. He was no champion of the people; his writings reeked with contempt for them. (I can remember him caring about the voice of the people when pro-life protesters tried to infringe on the constitutional rights of those who wanted to have an abortion.) When all the fancy dressing of the elaborate rhetoric that Scalia deployed was stripped away–in cases that most starkly brought the legally dispossessed into conflict with those well entrenched in power, corporate or state-what always stood revealed was a veneration of power and fury at those who had dared challenge it.

It’s perfectly alright to speak ill of the dead when they were public figures. Scalia sent many to their deaths, he scorned the struggles of those claiming their legal and political rights; I am not upset his tenure on this earth is over.

One comment on “Antonin Scalia And His Incoherent, Hierarchy-Loving, Theory Of Constitutional Interpretation

  1. keithnoback says:

    I hate to agree with you, but I do.
    In his defense, I think he was a consistent deontologist, and demonstrated the inconsistent outcomes which result from that position. For instance, it was his judgement, as a judge, that judges were not necessary, as judges, unless one judged that an external duty superseded constitutionally delineated duties in a certain case, in which case one must use one’s judgement to interpret that constitutional duty in terms of the superseding duty…

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