Antonin Scalia heaped scorn on what he called judicial activism yesterday at the University of Connecticut School of Law. Scalia delivered a special helping of vitriole on those supporting something he called a "living constitution." The justice was dressed in a modern suit and tie.
No one questioned the justice's choice of clothing. But were his worldview of one piece, he would have appeared in knickers, a waistcoat and colonial attire. You see, Mr. Scalia has made a fetish of a particular point in the past. He regards the intentions and meanings of the founders of this republic as near sacrosanct.
We must hew to the original meaning of the constitution in contemporary efforts to understand our laws. Why? What made Thomas Jefferson's dalliance with his slave Sally Heminway so special? And which part of the three-fifths compromise calling for the treatment of African-Americans as a mere fractions of a white man for census purposes is Scalia prepared to endorse?
Oh, I know. These are cheap shots. Scalia is a serious intellectual. His commitment is to broad structural overviews of the constitution. Yet that, too, is facile. The Commerce Clause doesn't define the same set of relationships in a world in which one can travel to Asia in less time than it took in Washington's day to travel from New York to Philadelphia.
Scalia contends that judges are no better fit than ordinary folks to make moral judgments. True. So he makes no apologies for his opposition to gay rights, abortion, physician-assisted suicide. All views he no doubt finds consonant with the founders'.
It is difficult to take Scalia's commitment to orignalism seriously. He blasts those favoring a living constitution, arguing that such folks are too free to impose their meaning on age-old terms of constitutional text. Yet the decision he makes to adhere to the words of those long-dead is just as much of a choice. Frankly, I'd choose even a bad doctor trained this century over Benjamin Rush, a famouse colonial physician. So would Scalia.
When Scalia preaches his brand of old-time religion and casts his lot with the long dead, he is not arguing from some pure, privileged position. The founders aren't fetishes. Scalia makes choices here. Choices that serve his values. The fact that he picks and chooses which parts of colonial America to worship makes the selective character of his choices obvious. He'd at least be consistent if he turned up at the Supreme Court in a horse-drawn livery. "Why, this is how Hamilton traveled," he could exclaim.