Jack Balkin has responded again to my post below on Scalia. I agree with most of his points, and would respond as follows:
1. Stuart assumes that my evidence of race conscious remedial relief by the Reconstruction Era Congress that framed the Fourteenth Amendment is the Freedman's Bureau statutes. I'm actually thinking of the various acts that my colleague Jed Rubenfeld discusses in his 1997 piece on Affirmative Action in Yale L.J. They applied not only to recently freed blacks who had been enslaved, but also to free blacks who had been free for many generations.An interesting point. I was familiar with Rubenfeld's piece when it came out, but had forgotten that detail. Still, an originalist like Scalia might reply that these race-conscious measures were 1) enacted by the federal government 2) in a context of overwhelming state-sponsored discrimination, which means that they could be distinguished for purposes of resolving the Michigan cases.
2. Stuart doesn't adequately address the basic problem for Scalia: squaring his interpretive theory with the whole set of proof requirements the Court has added since Bakke to enforce strict scruinty.Well, I'm not up to the task of reconciling Scalia's claimed interpretive method with every opinion he has joined. I agree that the modern Supreme Court, Scalia included, has often invented doctrinal structures that are spurious when compared with the actual constitutional text as originally understood. Whether these are per se illegitimate for an originalist, or whether they can be considered reasonable measures of "implementing the Constitution" (to quote Richard Fallon), is a question beyond the scope of this blog.
4. All of this is covered in my conlaw casebook, Brest, Levinson, Balkin and Amar, Processes of Constitutional Decisionmaking (4th ed. 2000) and you can look it up for more details.I will happily do so if Mr. Balkin will provide a complementary copy addressed to 1717 Main St., Dallas, TX, 75201.
Judging from his public writings on the subject, my first year con law students appear to know more about the original understanding of the Fourteenth Amendment than Antonin Scalia does. That, I think, is a disgrace for someone who claims to have the interpretive philosophy that he purports to have, and who has the power to shape the U.S. Constitution that he possesses.I agree that the Court's jurisprudence has often ignored or slighted the history of the 14th Amendment's adoption, particularly in the exceedingly weak decision of Boerne v. Flores. My favorite footnote from a Michael McConnell article is footnote 151 of his Harvard Law Review comment on that decision. The Court (Kennedy writing) had claimed that when the 14th Amendment (as we now know it) was adopted as revised from a previously-offered version, the drafters meant by the revision to restrict the scope of Congress's power. Said the Court, "scholars of successive generations have agreed with this assessment." McConnell, however, deftly points out that each of the two historians cited for this point actually disagreed with the Court's conclusion. In a wry understatement, he observes that "[t]his sentence must have slipped past the cite-checkers." !
6. Finally, the point of my previous post was to chide Scalia for a more general failing: In his opinions, he tends to invoke original intention as a rhetorical ploy when it suits his agenda, and when it does not, he simply fails to say anything at all about history or original understandings. And all the while he insists that he has no authority to do anything but follow the original understandings of the text of the Constitution. That may or may not be a logical contradiction. I do think it is hypocritical.Let me grant for the sake of this discussion that Scalia is hypocritical. But getting beyond this ad hominem argument, should we not count it a point in favor of Scalia's interpretive method that it can be used to impeach him, or to demonstrate that he has gotten an answer wrong? One of Scalia's main arguments for textualism/originalism is that it generates, more often than any other method, some sort of right answer that doesn't depend on the judge's preferences. Even if Scalia fails to apply originalism correctly in a few cases, doesn't that very fact that such a failure can be identified prove that he is actually right on the merits of originalism?