The joys of originalism: “I don’t even have to read the briefs”

by on January 5, 2011  •  In Constitutional law, Supreme Court

California Lawyer just published an interview of Justice Scalia in which he declared that it was so obvious to an originalist interpretation of the Constitution that the Equal Protection Clause doesn't forbid any form of unequal treatment except that based on race that "I don't even have to read the briefs." Here's the key passage (the interviewer is Hastings Law Professor Calvin Massey):

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

The shallowness of this approach is really stunning. Jack Balkin takes it on, stating the obvious:

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

Oh and BTW, Justice Scalia's riff on why it does not apply to sex discrimination is also historically inaccurate.

But let's get real – the bottom line import of this approach to constitutional interpretation (shared by many in addition to Justice Scalia) is that it eviscerates constitutional protection for marginalized and unpopular minorities, allowing (often temporary) majorities to scapegoat them for evils real and imagined and to impose legal disabilities unrelated to any legitimate, much less proportional, public goal.

Under Scalia's originalism, the only recourse for ending even the most oppressive law would be for a legislative reversal, ie, for a new majority rule. Reversing bad laws by majoritarian means is great if you can do it, but the point of a constitution as a charter of government is that some principles are structural, not merely that we the people have agreed that a few mostly 18th and 19-century practices are now off the table. Scalia would treat the Bill of Rights as an appendix of stipulated prohibitions, expandable only by constitutional amendment absent legislative action. 

An example? None better than Romer v. Evans, the decision invalidating a Colorado state constitutional amendment that would have set a higher bar for enacting anti-discrimination legislation for gay people than any other group. Other groups simply had to enact legislation (majority vote); gay people would have been required to enact another state constitutional amendment (super-majority vote to put it on the ballot and huge additional expense and effort, etc). Under the Scalia approach, no level of irrationality or animus could justify striking down Amendment 2 because the Fourteenth Amendment would not apply to sexual orientation discrimination in any situation.

Who benefits from this mode of constitutional interpretation? Well, to ask the question is truly to answer it, wouldn't you say?

Or, to paraphrase another portion of the Scalia interview in which he discusses widespread use of the "F" word (yes, this troubles him greatly):

The Scalia school of jurisprudential meanness "is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn't behave that way." 


One Response to The joys of originalism: “I don’t even have to read the briefs”

  1. Darren Hutchinson January 5, 2011 at 3:08 PM

    I do not doubt that most of the Framers of the 14th Amendment did not view the document as generally prohibiting sex discrimination. The suffragists who protested the inclusion of the word “male” lost the battle, and it did take nearly a century to get the word out of the document.

    Originalism is, nevertheless, a bankrupt enterprise for many reasons. I am more intrigued, however, by Scalia’s hypocritical embrace of and retreat from originalism. Compare his thinking on sex discrimination with race discrimination (or even his state sovereignty opinions). I wrote a blog on this: link to

Leave a Reply

Your email address will not be published. Required fields are marked *