Although my friends and family would call me argumentative to fault, I try to make a point of admitting when I’m wrong. I’ve been watching this spectacular debate between Justices Breyer and Scalia and it looks like I might have seriously underrated the value of originalism. If you have 90 minutes to spare, I suggest that you watch this rather interesting debate between two very learned individuals. Both of the Justices are entertaining, engaging, and very good at elucidating topics that a lot of people may not be familiar with.

Justice Scalia offers the most eloquent defense of originalism that I’ve ever heard. He contends that the Court should always adapt to new and changing situations, but the text of the Constitution can never gain new meaning. His most powerful example was the death penalty: If the death penalty wasn’t ‘cruel and unusual’ in 1789, why would it be ‘cruel and unusual’ in 2007?

In a Scalian world, the changing tide of morality would do its bidding through the legislative and executive branches, not the courts. Justice Scalia claims that if the people want laws prohibiting sodomy, they should be allowed to pass those laws because our founding fathers would have felt that was a legitimate legislative action. He is directly citing the Court’s 2003 decision in Lawrence v. Texas. In 1986, the court upheld the constitutionality of laws that prohibited sodomy in Bowers v. Hardwick but directly overruled that 17 years later in Lawrence. Justice Scalia lashed out at the six-person majority in Lawrence with cries of stare decisis and originalism. He cited 13 states that had anti-sodomy laws at time of our Constitution’s ratification and the more recent establishment of precedence in Bowers.

Justice Thomas’ dissent in Lawrence shows his typical disregard for years of precedent. Unlike Justice Scalia, who sprinkles originalism with a pinch of adherance to stare decisis, Justice Thomas is willing to roll the clock back on privacy laws. Here is Justice Thomas’ dissent in its entirety:

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.

Despite my newfound respect for Scalian originalism, I’m not sure how I would vote in a case like Lawrence. I believe that homosexual sodomy laws are not just an unnecessary extension of legislative powers, but a serious infringement on equal protection guarantees. Sodomy, strictly defined, can be engaged in by same-sex or opposite-sex couples but the Texas law at question in Lawrence outlawed only the act between same-sex couples. On the other hand, the right to engage in sodomy, like Justice Scalia contends, has never been considered a ‘fundamental right’ subject to protection under the notion of substantive due process. Extending the concept of substantive due process to rights that extend beyond the ‘fundamental’ realm could give the Supreme Court an unnaturally large amount of power in overruling majoritarian legislation.

My biggest concern with originalism is its limits. Justice Scalia concedes that originalism sometimes fails to produce an out come that is either desirable or legally actionable. He brushes aside these cases claiming that they don’t arise very often and continues his now nearly-categorical defense of the concept. I’m not sure that I can fully subscribe to a version of constitutional interpretation that produces poor results in certain cases. Its almost as if Darwin had suggested that most animals arrived through a process of evolution, but dogs, antelopes, and centipedes were created by God 6,000 years ago.

It might be unfair to reject the notion of originalism simply because it doesn’t apply to every case but I can’t commit myself to a theory that has important pitfalls in important cases. Who is to say when it produces an end that is so repugnant that a Justice should move over to another method of interpretation? That judgement itself defats the purpose of having a clear-cut method that leaves no room for judicial activism in its most pejorative context.

But at the end of the day- thanks Justice Scalia….It feels good to be (sort of) an originalist.


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