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The least plausible argument ever


I mentioned recently that to call Antonin Scalia a “formalist” is too give him too much credit. Now, in fairness, if you evaluate these things on a continuum he could be seen as relatively “formalist” in comparison with the typical Supreme Court justice. (And, contrary to the assumption that this always produces conservative results, I would note that the few non-reactionary elements of his jurisprudence come from his relatively literal readings of the First, Fourth, and Sixth Amendments.) Nonetheless, I also mentioned that Bush v. Gore pretty clearly gives away the “formalist” (or “strict constructionist”) show. In a remarkable quote unearthed by Jack Balkin, however, Nino is actually trying to argue that this flagrantly unprincipled decision is justified by originalist jurisprudence. As Balkin notes, this is patently ridiculous, given that the Fourteenth was not originally understood to pertain to voting at all, let alone conferring a “right” to have different ballots counted in the same way (but only in this one case despite the fact that this “right” in repeatedly violated in every federal election, and also this right in fact has no remedy but means reversion to a result that is more inequitable under the alleged standard):

I hope he was misquoted. There is almost no evidence that the Framers of the Fourteenth Amendment believed that the Amendment was designed to remedy inequalities in voting. Indeed, the Amendment was drafted the way it was to ensure that it did not give whites and blacks (or men and women) equal rights to vote. The right of black suffrage was not guaranteed until the Fifteenth Amendment in 1870; the right of woman suffrage was not guaranteed until the Nineteenth Amendment in 1920. If the Fourteenth Amendment already guaranteed equal protection of the laws in voting, the Fifteenth Amendment and Nineteenth Amendments would have been entirely superfluous.

Again, I wish the claim that the conservatives on the Supreme Court were crabbed formalists unwilling to consider the substantive outcomes of their opinions was actually true…anyway, I think Balkin is right that the point isn’t that originalism is inherently bad. Awful results have been produced by every interpretive method, and every method can be used badly. The real point is that in practice these alleged grand theories don’t do much to constrain justices, and that goes double for “originalism” practiced with law office history.

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