Scalia was Wrong About Originalism.

I’ll preface by saying that I subscribe to the doctrine of originalism — the judicial philosophy that we ought to interpret the Constitution as it originally meant at the time of adoption.

I do, however, dissent from the mainstream view regarding originalism. This prevailing perspective, espoused by Justice Scalia and Thomas, binds judges to the expected applications of our founding document.

A concrete example can be found in Obergefell v. Hodges, the Supreme Court case that guaranteed the rights to same-sex marriage.

Scalia dissented, “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman ... When it comes to determining the meaning of a vague constitutional provision — such as “due process of law” or “equal protection of the laws” — it is unquestionable
that the people who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.”

This was egregiously wrong. When interpreting the Constitution, we shouldn’t simply look to “practice[s] that remained both universal and uncontroversial in the years after ratification.” Instead, we ought to remain faithful to the text itself. Using the latter analysis, it is clear what the Constitution requires. The Fourteenth Amendment reads, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

Sure, the country in 1868 would have been appalled at our redefinition of marriage. However, judges are bound not by the regressive opinions of their predecessors but rather only by the plain words of our laws. If same-sex couples are forbidden from the social benefits of marriage that the laws grant upon married couples, they were emphatically not given equal protection of the laws!

In 1954, the Supreme Court decided the most famous case in American history — Brown v. Board of Education of Topeka. Chief Justice Earl Warren rightly ruled that segregated educational facilities were inherently unconstitutional. By Justice Scalia’s philosophy, however, Brown would have been decided incorrectly. After all, the society that formed ex-post the Fourteenth Amendment, approbated by Plessy, was segregated. That fact did not mean the Warren Court should have upheld segregation to be loyal to a senile implication of the amendment’s adoption. Thankfully, the Warren Court did not apply that narrow model of originalism.

Even Scalia himself rightfully deviated from his proclaimed view of originalism. In Kyllo v. United States, he wrote for the majority that the use of thermal-imaging devices to scan for marijuana violated the Fourth Amendment. Yet, it doesn’t take much to realize that thermal-imaging devices did not exist in 1791! However, Scalia correctly adjudicated that the use of such tools would intrude upon “the right of the people to be secure in their … houses.”

Justice Scalia often warns us against the impending disaster of the Living Constitution. In his view and mine, granting monastic judges the right to dictate liberties would be antithetical to democracy. Just as dangerous, however, is a restrained view of originalism that discerns the Constitution by looking at its expected implication. Rather, we ought only to look at what the words themselves require, nothing less.



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