gaarbru

In a recent debate with Nadine Strossen, Associate Justice Scalia once again outlined his reasons for supporting an interpretation of the Constitution's text based on meanings given to words in the document at the time of its framing, and used affirmative action as an example of how not to interpret the Constitution's text. In a surprise move, he appeared to threaten that some future conservative majority on the Court might use the liberal approach of "inventing rights" to interpret provisions of the document in ways we will come to regret, warning "[s]omeday, you're going to get a very conservative Supreme Court and regret that approach." (News Flash: Americans Already Regret Conservative Court Majority's Interpretation of Key Provisions of Constitution. Film at Eleven.)

Over his twenty years on the Court, Justice Scalia has made a set of inter-related arguments on Constitutional interpretation that at first blush appear consistent. At the outset, he argues that the meaning of the words of the Constitution must be derived from those originally assigned. Second, where the Constitution is silent, judges may not interpret other provisions broadly to achieve some desired end. As a side note, it appears that Justice Scalia assigns meaning to the word "broadly" in such a way that he will uphold broad interpretation where he believes the framers wanted breadth, and narrowness where he believes they favored a non-uniform policy best suited our national interests (unless of course you are talking about a state's power to establish and interpret its own constitution and election laws. Then, of course, by all means, stop the recount and elect George Bush!). Whether this was in fact the framer's understanding of the word broadly is not really a point the Justice feels the need to labor upon.

Finally, based on the previous two assumptions, Justice Scalia arrives at one stated and another implied conclusion - if we want the Constitution to achieve some end we find desirable, we have better accomplish that end politically (but only if that political outcome does not interfere with some other portion of the Constitution), or change the meaning of the Constitution through an amendment process. Implied here is that Justice Scalia will presumably interpret the words of these future amendments in a way that is faithful to the intent of their framers. I say presumably because, as we will see, Justice Scalia is not above reinventing the historical record to ratify his own particular view of what the Constitution says where intent doesn't provide him much in the way of currency.

Affirmative Action provides us the clearest example - "The Constitution very clearly forbids discrimination on the basis of race," the justice noted during the recent debate. "It doesn't seem to me to allow [the University of] Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."

This interpretation (often called the "Color-blind Constitution") flows not from the record of the intentions of those who framed the Civil War Amendments (in particular Amendment 14), but from a quotation stripped from Justice Harlan's dissenting opinion in Plessy v. Ferguson. The quotation itself provides an example of just how tricky discerning original intent is, and how one really needs to go to the source and consider context - Justice Harlans remarks are directed at the particular state policy at issue in the case, one that he understood placed a badge of inferiority upon the African race in America. Apart from this quotation directed at a policy disadvantaging a population, no one opposed to the system of racial segregation emerging in the aftermath of Plessy would later argue that the words of the 14th Amendment denied Congress the power to interfere for the benefit of a class of persons systematically disadvantaged in the United States for several hundred years. Could it be that the Justice and people like him are exploiting Harlans dissent, purposefully misinterpreting it in an effort to make their preference for Constitutional meaning appear legitimate?

Certainly neither the primary author of the 14th Amendment (John Bingham of Ohio), nor its Senate sponsor, nor any of those who voted in Congress to submit that Amendment to the state legislatures for ratification, would understand that their words meant that the Constitution would henceforth view state action to systematically help a disenfranchised population in the same light as a policy to systematically harm them.

And certainly, none of these individuals would consider the possibility that the 14th Amendment by its nature committed the sin of saying to the weakest among us Go, I wish you well; keep warm and be fed, (James 2:15) but bound our hands to do nothing tangible for their benefit. As Kenneth Karst has noted, under any reasonable construction of the 14th Amendment, formal equality under law is not sufficient to establish fundamental fairness of the kind envisioned by the framers of that amendment. As William D. Blake has noted [I]nstead, government must proactively ensure that all citizens have the tools needed to pursue their conception of the good life. In point of fact, those who debated the Amendment in Congress considered affirmative action policies (although the term was not used until the early years of the 20th century) as a legitimate use of Congress power under the amendment. See Raoul Berger, The Fourteenth Amendment and the Bill of Rights, University of Okalahoma Press (1990).

Regardless of Justice Scalias historical revisionism, he surely must comprehend the argument adopted by the framers as part of the earliest interpretation of our Constitution governments job is to provide the resources necessary for its citizens to compete and thrive within the context of our economic system. This argument was the basis for the granting of charters to build roads, highways and navigable waterways, and above all to justify giving away free land to those who were not previously property owners (talk about an affirmative action policy!). In light of two hundred years of governmental policies aimed at increasing competition, our longstanding commitment to fundamental fairness is sufficiently compelling enough to justify policies that level the playing field in terms of those resources required to compete in the modern world, education being chief among them.

Furthermore, Justice Scalias adherence to textualism and original intent puts him on a logical trajectory to argue that other legislative acts benefiting specific classes of persons are contrary to an original understanding of the role of government in social, political and economic life. If he is indeed faithful to original meaning in all its dimensions (which I suspect that he is not), then a Court populated by Scalia clones would engage in the radical task of turning back the clock on any governmental action that had not been explicitly authorized through an amendment process including minimum wage laws, maximum work hours laws, social security, and the entire federal bureaucratic regulatory scheme a scheme understood to be a gross abuse of governmental power under an interpretation of the Constitution faithful to the intent of the framers. Justice Scalia has selected his ideological poison. Now, hes trying to use it as a kind of Constitutional chemotherapy to destroy those social and cultural developments that he finds objectionable, while accepting the ones he doesnt without any truly honest consideration for framers intent. As Blake noted "Scalia often says "[The Constitution] never says [x,y,z]." If that is true, then where are the specific set of instructions in the Constitution to inform judges that they are to adhere to an original interpretation? Even more fundamentally, why isn't judicial review clearly articulated in the Constitution. Ascribing clear original intent to broadly worded legal principles is a task that even the best historians can not accomplish on every question facing the Court today."

Most likely, a final objection he might raise concerns when affirmative action policies will cease to be necessary. Justice OConnors belief that affirmative action has a 20-year shelf life notwithstanding, I would answer that question with reference to Justice Scalias own remarks about the nature of his job thats none of his business because it is a political question. When Congress and the states decide that affirmative action policies are no longer necessary to ensure that racial animus creates no social, cultural, political or economic disadvantage, or if we ratify an amendment to the Constitution that specifically bans their use, affirmative action policies are constitutional, and may be properly put into effect regardless of Justice Scalias concerns about their wisdom.

// posted by wgvx @ 5:22 PM