CT Blue

Antonin Scalia has a problem. His intellectual dishonesty is showing:

If there is a topic Justice Antonin Scalia does not relish discussing, it is how he would have voted in Brown v. Board of Education had he been on the Supreme Court when it was decided in 1954.
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The Brown decision, which said the 14th Amendment prohibited segregation in public schools, is hard to square with Justice Scalia’s commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text.

Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

What’s a hypocrite to do?

The dead have a problem. They are defenseless. Even when they have spoken for themselves they are ignored, and people like Scalia presume to speak for them. The “originalists” pretend to believe they can channel the Founders, conveniently ignoring the wide range of views held by that disparate bunch. In fact, it’s truly amazing how often the original intent of the Framers seems to coincide perfectly with the predilections of the originalists themselves. For instance, in a few weeks or months, Scalia will probably be explaining how Jamie Madison would have been all in favor of erecting crosses on public land, despite the fact that he and Jefferson did all they could to keep a divinity school out of the University of Virginia (and succeeded). What would Little Jamie think? No one can say for sure, but my own guess is that he would have opposed that cross, if he thought he could get away with it.

The real problem with originalism is that it is an insult to the Framers. For the most part they were men (sorry, no women) of the Enlightenment. They would have cringed at the idea that they were putting the future into a conceptual strait jacket or that they were writing holy writ. They were acutely aware of the fact that they lived in an age in which they had just recently managed to shake off the “dead hand of the past“. It’s hard to believe they would have wanted their own dead hands to hold down a world they could neither predict nor understand.

But the originalist are endlessly creative. Brown v. Board of Ed is a problem. It is simply politically incorrect (give them 10 years, and maybe that will change) to say out loud what they really think: that it was incorrectly decided. So, if history is against you, there’s only one solution: change history:

The other main way originalists justify Brown is by gathering historical evidence to show that the people who adopted the 14th Amendment did indeed mean to ban segregated schools. Justice Scalia nodded in the direction of that argument in Arizona, saying that “although some states continued to have schools like that, some abolished segregated schools after it was passed.”

And indeed, it’s not impossible to find examples of Congressmen (Thaddeus Stevens, for example) who would have opposed school segregation. That doesn’t change the fact, however, that Brown represented a departure from majority sentiment at the time of the adoption of the 14th Amendment.

One must wonder, too, how Scalia manages to fit women’s rights within the ambit of the 14th Amendment. It’s a sure bet that virtually none of the Framers of that Amendment had women in mind when they wrote it.

But for those of us with memories that go back 9 years or so, this really hits the spot:

In Arizona last month, Justice Scalia chose his words carefully. He seemed to suggest that Brown reached the right result as a policy matter but that it was not compelled by the Constitution. Still, Justice Scalia said, that is no reason to favor Justice Breyer’s more flexible view of how to determine the meaning of the Constitution.

“Don’t make up your mind on this significant question between originalism and playing it by ear on the basis of whether, now and then, the latter approach might give you a result you like,” Justice Scalia said.

“Hitler developed a wonderful automobile,” he went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.

“The test is over the long run does it require the society to adhere to those principles contained in the Constitution or does it lead to a society that is essentially governed by nine justices’ version of what equal protection ought to mean?”

Think Bush v. Gore. It was decided on equal protection grounds. How many of the Framers of the 14th Amendment expected that they were giving 4 men and a woman license to steal a presidential election, yet apparently, according to Scalia, they did.