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Scalia and the Reactionary Mind

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I promised to say more about Corey Robin’s assessment of Antonin Scalia in The Reactionary Mind, some of which is excerpted here. Before I get to that, I should say that it’s an excellent book I strongly recommend. And one initial complaint notwithstanding, the Ayn Rand chapter (“St. Petersburg in revolt gave us Vladimir Nabokov, Isaiah Berlin and Ayn Rand. The first was a novelist, the second a philosopher. The third was neither but thought she was both…”) is particularly good. Since Bernstein uses both the “could you do better?” and the “but Rand sells lots of books!” arguments, I suppose this goes without saying. You think Dan Brown is a hack? Sorry, but unless you’re Alice Munro I’m afraid you’re not allowed to say it.

On Robin and Scalia, a few reflections:

  • Paul has also discussed this recently, but the relish Scalia often takes in getting things to come out wrong is a particular trademark.   As Robin says, one of the things that make Scalia a more interesting figure  (as well as a marginally better Supreme Court justice) than Alito is that he doesn’t always relish unpleasant results in a conservative direction.   His confrontation clause jurisprudence is another good example.  There is a certain conservatism inherent in Scalia’s distinctive preference for struggle and tough choices based on clear rules, as John Holbo’s classic review of Dead Right reminds us vividly.  But sometimes it actually constrains what we might expect are his policy preferences.   (Just as, for that matter, Frum is a lot more interesting that Bill Kristol.)
  • It should be noted, however, that there are distinct limits to Scalia’s duresse oblige.  This is most visible is most visible in his Fourteenth Amendment jurisprudence, which is a complete mess even if we leave Bush v. Gore out of it.  (Which we shouldn’t; as Robin says Scalia’s telling people to “get over it” as if his lawless expedience represented a tough choice required by law is a defining moment.)     When the amendment that defines the post-Civil War constitutional order is concerned, Scalia makes sure everything comes out right — in the sense of preserving traditional racial and gender hierarchies.
  • To the extent that I have a different take, then, it’s that I don’t think that originalism is very important to Scalia’s jurisprudence at all.  Tradition, yes, but not originalism.   Scalia’s dissent in U.S. v. Virginia has a lot to say about how discrimination against women is deeply rooted in American political culture (and is, therefore, constitutionally self-justifying) but very little to say about the text, structure, and purpose of the Fourteenth Amendment.   Like most  “originalists,” Scalia has rarely shown a deep or sustained interest in constitutional history.   Even the law-office history in Heller isn’t all that common to his jurisprudence.    Much more instructive is his conduct in the follow-up case McDonald v. Chicago, in which both at oral argument and his separate opinion Scalia was contemptuous of Thomas’s arguments that the Court should try to correct the hash the Court made of the privileges and immunities clause in the Slaughterhouse Cases.
  • To put it another way, Robin argues that “Scalia’s philosophy of constitutional interpretation — variously called originalism, original meaning, or original public meaning — is often confused with original intention.”   As I’ve argued in more detail before, I think that in practice this is meaningless distinction; essentially, “original meaning” involves consulting the same sources of evidence and making the same types of arguments as “original intention.”   The only difference is that the former is superficially more plausible.   It’s relevant only because 99% of the time invocations of originalism are a rhetorical strategy — a way of implying that opponents are just ignoring the Constitution — rather than a grand theory that governs judicial interpretation.   Scalia — who gets credit for being a principled originalist even though originalism doesn’t have a lot to do with his actual jurisprudence — is a case in point.

At any rate, almost any part of the book inspires a lot of thought, so it’s definitely worth checking out.

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