242. Nuts

The LA Times recently quoted Justice Scalia telling students at Claremont McKenna College: "I'm a textualist. I'm an originalist. I'm not a nut."  But he's a nut about some things, and one of the nuttiest things about him is that he doesn't perceive any contradiction between his first two self-descriptions. 

The whole purpose of being an "originalist" is to fill in the gaps left by the text of the Constitution.  The doctrine, if it deserves such a dignified title, is based on the idea that judges have the power - even the duty - to invent new constitutional doctrines based, not  on the text, but on the judges' imputation of an unexpressed intent, the meaning that the drafters intended to put into the text but absent-mindedly left out.  (See post 81.)

Pure textualism is the only position justified in democratic theory.  It's based on the idea that the Constitution is binding only insofar as the American people agreed to be bound, and they could only have agreed to be bound by the words on the page.  There are no gaps to be filled.  There can be no gaps, by definition.  If the Constitution as it exists is inadequate, the only legitimate way to fix it is by democratic action, that is, through the amendment process. 

Originalism, like any other theory of the "living Constitution," is based on nearly the opposite idea, that the Constitution is an open-ended grant of power to judges.  That the American people who ratified the Constitution and its amendments were saying: "We don't care to define our essential liberties.  We'll leave that to unelected federal officials to explain to us at some later date."  Whether the judges base their eventual explanations on mystical revelations of social evolution or on amateurish historiography (see post 238) is, at best, a difference in technique only, and maybe not a difference at all.

Or, more brutally but perhaps more realistically, originalism boils down to this: "It doesn't matter what the American people said in the past or what they want of their government today.  We're judges and we make the rules.  The people can pass laws that will be effective unless we decide to veto them, based on cynically-shifting proclamations of what is and what is not 'constitutional.'  Other than that, the people's only job is to obey us - although, really, they ought to reverence us, too."

Comments

[Young PD]

If textualism is the only justifiable position of constitutional interpretation in democratic theory (and I tend to agree), then is there a place for remedy making like the exlusionary rule? If the constitution grants a right to be free from unreasonable searches and seizures, then doesn't the court have to make something up as a mechanism to enforce that right?