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Scalia, Originalism and the Ladder of Abstraction


Adam Cohen notes Antonin Scalia once again asserting that the Constitution does not protect gender equality. His reasoning is superficially “originalist”:

Indeed, Justice Scalia likes to present his views as highly principled — he’s not against equal rights for women or anyone else; he’s just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. “Nobody thought it was directed against sex discrimination,” he told his audience.

Far from being convincing, this just illustrates some of the obvious problems with originalism:

  • As Scalia himself has argued many times, to the extent that originalism is defensible at all, it must be concerned with the constitutional text, not the subjective intentions of the framers and ratifiers of the text.    But that leads us to an obvious problem: the text of the 14th Amendment’s equal protection clause is not confined to race.    As you can see by scrolling down to the subsequent amendment, the equal protection clause could have been confined to race; it just wasn’t.    So, from a textualist originalist standpoint, what people thought it was “directed at” in 1868 is beside the point.    We’re bound by what they wrote, not by what they expected.
  • If we accept that the expectations of the framers and ratifiers have some relevance, then Scalia runs into a different problem: Brown v. Board. Scalia believes that Brown was right — but the vast majority of the 14th Amendment’s framers and ratifiers did not believe it was directed at segregated schools.   And Scalia also believes that the 14th (and 5th!) Amendments prevent any racial classifications, although very few people would have thought in 1868 that the 14th Amendment was directed at programs intended to help African Americans, and absolutely nobody would have thought in 1789 that the 5th Amendment forbade racial classifications of any kind.    The way he solves these problems is to climb originalism’s ladder: that is, to define the specific questions of “school segregation” and “affirmative action” at a higher level of abstraction, “racial equality.”   The problem is, once you’re on this ladder, there’s no principled reason to stop at any particular rung.   Why not climb one step further to incorporate “gender inequality,” which is obviously analogous in many respects and is not foreclosed by the text?
  • And, finally, Scalia’s belief that the Constitution provides no protection whatsoever against gender discrimination reminds us that originalism is very normatively unattractive.   Since originalism 1)leads to grossly unjust results that are not remotely compelled by constitutional texts, and 2)as we’ve seen does very little to constrain judicial discretion, who needs it?

[X-Posted at TAPPED.]

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  • norbizness

    Quick, possibly related question: was the Equal Rights Amendment then only proposed to close off all debate like this?

    • R.Johnston

      The ERA would have upped the level of scrutiny applied in sex discrimination cases from intermediate to strict scrutiny. That, in addition to foreclosing this kind of “debate,” was a definite purpose of the ERA.

  • bobbo

    Scalia is just a Republican politician. He favors certain outcomes, but frames it in terms of a philosophy which just so happens to lead to those outcomes. Except when it doesn’t, in which case he just fudges.

    • Davis

      Here’s hoping that he goes down in history as a political hack and not the legal scholar he thinks he is. I’m pretty sure Bush v. Gore will do the trick.

      • cer

        When my students read his dissent in Lawrence their first reaction is “Is he serious???” I would like this to be his legal legacy.

      • wengler

        The counting of votes would cause irreparable harm to George W. Bush.

        Scalia’s great legal mind at work in staying the count of undervotes in Bush v. Gore.

  • Anderson

    I was taunting some Volokh commenters on that Scalia lecture.

    Given that the 14th Am., section one, applies to “all persons,” then why would a “strict constructionist” even read outside the four corners of the text? What *broader* language than “all persons” could the drafters have used?

    I didn’t add, but could’ve, that it’s pretty rich hearing from an “originalist” who says we have to look to what people intended by certain words … when that same “originalist” expressly refuses to consider legislative history in ruling on the interpretation of statutes. Let’s not see what the guys debating whether to enact the statute said … let’s just look in some dictionary they might’ve had on their desks!

  • Rick Massimo

    We’re bound by what they wrote, not by what they expected.

    Yeah, this is what particularly burns me about Glenn Beck’s quasi-religious rooting around in Founders’ letters and screaming “HE SAID ‘GOD’! WE’RE SUPPOSED TO BE A CHRISTIANIST THEOCRACY!!!!” The Constitution says what it says, and 200-plus years of Supreme Court decisions are what they are.

  • DrDick

    Scalia’s (and everyone else’s) originalism refers to how do I justify the outcome I originally desired in this case. It has always been abundantly clear that outcomes, not legal theories or doctrines, have always driven his analyses and decisions.

  • booferama

    The problem is that you’re treating Scalia’s originalism as if it’s actually a coherent philosophical or hermeneutical approach that guides his thinking, when in fact it’s window dressing for his bizarre worldview.

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  • Aaron Baker

    Brian Leiter has knocked originalism more than once on his blog; definitely worth a look.

    Here are two examples:



  • NonyNony

    who needs it?

    Apparently misogynist assholes who want to eliminate equal protection on the basis of gender need it. Otherwise folks like Scalia would have found a different horse to flog for justifying their desire to be able to legally treat women as second-class citizens.

  • herr doktor bimler

    Is anything known about the policy that the framers of the constitution had in mind for how future courts should interpret questions of its application? That is, is there any evidence that “originalism” was an original intent?

    • Holden Pattern

      That could probably be answered by reference to the way that the courts of the time decided cases. But I’m not sure I even care what the founders “thought”. They “thought” all sorts of things that we now know to be factually false, and each of them “thought” something different.

    • Boudleaux

      I like the way you framed that.

      I think built into it is a conceit that “change” is a modern phenomenon, because things, e.g., technology, change so quickly now.

      So we tell ourselves that the period from 1700 to 1800 involved so little “change” that the Founding Fathers must have intended their current meanings to be frozen in time, because they never imagined “change.”

      I tend to think that they had experience with changes, and therefore intended a flexible document.

  • norbizness

    Remember the possibly apocryphal quote from Rehnquist when he was Solicitor General: a strict constructionist is somebody who reliably rules against criminal defendants and civil plaintiffs.

  • ACS

    Re: the generality problem & “climbing the ladder,” Scalia has claimed (in Michael H. v. Gerald D.) to have a non-arbitrary way to determine the correct one: the right level of generality is “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”

    Of course, this is just stupid. There are a lot of things wrong with Scalia’s argument, but basically, nothing about “traditions” is less susceptible to arbitrary interpretation – traditions can be defined in lots of ideologically convenient ways, just like rights can, and picking one formulation of a particular “tradition” just brings up the same problem Scalia purports to solve.

    Thing is, Scalia’s smart enough to know this – he’s just as much of a bullshit artist as any of the so-called “activists” that he criticizes.

  • pv

    This illustrates why I’m broadly sympathetic to textualism (what else should you interpret but the text itself?) and very unsympathetic to orginalism (why go to extra-textual material that requires speculation on the intent of multiple individuals decades ago?).

    What continues to perplex me is when textualism and originalism are conflated. Any English major can see that these approaches are inconsistent: New Criticism, which focuses attention on interpretation of the text itself, explicitly excludes any appeal to authorial intent (Wimsatt and Beardsley’s “The Intentional Fallacy” is still, as far as I know, standard reading for a lit crit intro). But a constitutional scholar can conflate two interpretive approaches that are–as far as I can tell–explicitly inconsistent? I mean, I’m really, truly perplexed.

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  • Peter Olsen

    We have to thank the Democrats and the law of unintended consequences for Scalia. The Democrats didn’t like him so they torpedoed his nomination. I don’t think they had any idea of where they were going. The results have been Justices such as Scalia and Alioto who view the Constitution as a path to whatever political goals they wish to attain. (I’m an engineer, not a lawyer, so think at your own risk.)

    • Peter Olsen

      Please not that in the second sentence by “him” I mean Judge Robert Bork.

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