Original Sin: Scalia Unplugged

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Within the friendly confines of the National Review Online, under giggly persuasion from idolator/interviewer Peter Robinson of the Hoover Institute, far from any pesky students asking earnest but bothersome questions, and as part of an in-term promotional tour to sell his book, United States Supreme Court Justice Antonin Scalia relaxed and let it flow.

In a remarkable five-part series of interviews posted last week, the conservative and deeply devout ideologue, who believes that the Constitution must be applied narrowly as written with only the original intent of the Framers to guide modern jurists, consistently evoked the religious notion of sinful temptation to describe how so many of the rest of us have come to believe otherwise. He has said many of these things before -- but perhaps never as casually.

In Scalia's cloistered world, the judges, lawyers, and politicians who have enabled the Constitution's scripture to be interpreted broadly enough to be used to try to erase segregation or discrimination or prisoner abuse, or to try to protect and expand privacy rights, are really just weak sinners who couldn't resist the urge to meddle. Adam bit the apple. The Supreme Court desegregated schools. Both failed miserably in Justice Scalia's eyes.

Scalia apparently still considers himself "an embattled minority within the profession" (to use Robinson's words, not Scalia's) despite the fact that a strong majority of federal judges currently are Republican nominees (the GOP held the White House for 20 of 28 years before Barack Obama took office in January). Indeed, survey after survey suggests that the federal judiciary is surely as conservative as it has been since at least before the Great Depression. Justice Scalia was nominated to the bench in 1986 by President Ronald Reagan. He received a perfect 98-0 vote from the Senate, the last Justice to gain such unanimous consent.

Although Scalia acknowledges gains for the movement of which he's the de facto leader, in his view the rollback of Warren Court-era rights-- initiated by the Rehnquist Court and now devotedly sustained by Chief Justice John G. Roberts, Jr.-- hasn't gone nearly far enough. "Are you a champion of a lost cause," Robinson sympathetically asked. "I'm not optimistic," Scalia responded with all the drama of a television preacher. "I'll put it that way. I'm certainly fighting back to get to where we used to be…

"But I have to say it's a hard fight because the other philosophy is so alluring, I mean, what a wonderful feeling that whatever you think the Constitution ought to say it says. If you think it ought to contain a right to same-sex marriage, it does," Scalia added, "if you think it ought to contain a right to abortion, it does; a right to suicide, it does… Anything you hate is forbidden by the Constitution. Everything you love is required. It's hard to talk people out of that," Scalia said.

This is, indeed, the lament of Originaliasts; too many appointed judges, and not enough elected legislators, get (or usurp) the final call on contentious issues. It's a philosophy that exalts politicians at the expense of judges; a theory that, even Scalia concedes, presumes that democracy works far better than it actually does. It's also a theory that tends to discount the import of the Bill of Rights as an active check upon the tyranny of the majority.

Scalia is right. It is harder now than ever before to argue against support for the Supreme Court's Brown v. Board of Education that ended legal segregation in 1954. It's hard to argue against the Court's 1964 ruling in Loving v. Virginia that gave men and women the right to marry one another regardless of their race. But what Scalia considers the legal sin of temptation towards a "living Constitution"-what he mocks as "alluring" but not legally legitimate-- most of the rest of us proudly consider societal advancement. The allure, in other words, was real and, now, comfortably justified.

Who among us wants Jim Crow to come back to America? Who now would tolerate restrictions on the sale of contraceptives to adults? And has the world stopped spinning since bans upon consensual homosexual sex between adults, or same-sex marriage, were deemed unconstitutional? Of course it hasn't. Would these developments have occurred anyway without court intervention or stimulus? Perhaps. Would they have occurred when they did without judges? Absolutely not. Are we better off for it? Scalia clearly doesn't think so.

Robinson asked Scalia if there were something about modernity, or the media, which helped explain why so many Americans still do not endorse Scalia's originalist beliefs. Scalia responded with zealous scorn for his fellow judges. "Not that distorting the Constitution is something new. You've had willful judges from the beginning and will have them until the end of time but the difference is that until the acceptance of this new orthodoxy of a 'living' Constitution, until then, in order to distort the Constitution you had to do it the good old fashioned, honest way, you had to lie about it, and you don't have to lie anymore. You can say, 'oh yes, the death penalty used to be okay, it no longer is. Because we say so.'"

Scalia went on, more sermon than statement. "As far as I know, there is only one element of my faith that has anything to do with my being a judge…. 'Thou shalt not lie.' I observe that in all my judicial decisions. I never pretend that a case is not being overruled when in fact it is. And I never shade a case to make it say something that it isn't. I think the legal system suffers from that kind of cutesy-ness." Alas, Robinson didn't ask Scalia to name names-to identify the judges/Justices he believes are lying in their written opinions. That would have made their friendly, intellectually flirty conversation an exercise in actual journalism.

I never understood until now just how deeply Justice Scalia's legal philosophies and tactics are dictated by his religious fervor. Judges with whom he disagrees aren't just wrong they are "willful" and "distorting." The nation's continued rejection (in the main) of Originalist doctrine is based not upon historical weaknesses in the doctrine itself, or upon our general acceptance of judges as change agents when the other two branches have failed, but upon wicked "temptation" oozing out to jurists who have no faith or who just haven't seen the light.

This is the jurisprudence of the self-righteous; where faith in the omniscience of the Constitution's founders dwarfs all of the evidence we now have that the rich, white, often-slave-owning men who negotiated the terms of the document (and the Bill of Rights) were just as prone to vice, self-interest, and poor judgment as their political successors. Scalia is still a true believer in "original intent" because it's in his religious, faithful, prayerful nature to believe in things he cannot know. The irony, of course, reaching truly religious proportions, is that this Manichean world of black and white, right and wrong, good and evil, is precisely the opposite of what the world and art of judging are.

[cs4466]

This article is right on.

Scalia is an embarrassment to justice, the USA and to law in general. The fat troll needs to move out of the court and into a church where his fanatacism belongs.

[dixxson]

ANTHONY (FAT TONY) SCALIA"
Any Advocate of "TORTURE" has no place on the Supreme Court, Any American
court, or any Civil or "Uncivilized" court!
Maybe a Mob Boss, or one of Hitler's right hand "HENCHMEN"".

[polisigh]

The fact that the Supreme Court justices are not elected is not relevant in a representative democracy. The Constitution was written and voted upon in a largely undemocratic way; basically decided by a few wealthy landowners.
There is no way for Originalists to know what the meaning of the Constitution, generally or specifically, was for the masses. Even among eligible voters, a severely restricted few, less than 20% voted.
Even if there were no written Constitution, the rights noted in the amendments would still exist for Americans. So too, certain rights exist that are Constitutional that are not delineated in the written document. For better or worse, Constitutional Law changes with the opinions of each Court.

[Murphy5542]

This article is just awful.

Did Cohen even WATCH the interview with Scalia? Next time, turn on the sound.

[gage003]

I hope CBS isn't paying Attorney Andrew Cohen much. What a poorly written article. Acusing Justice Scalia of religious fervor indeed. Cohen wouldn't recognize a 'moral' if it bit him. Why else would Cohen blatantly mock religion in general and religion as Scalia's moral background.

Cohen, Cohen, Cohen..."But what Scalia considers the legal sin of temptation towards a ?living Constitution?-what he mocks as ?alluring? but not legally legitimate-- most of the rest of us proudly consider societal advancement." It is not advancement to lie, cheat, and steal our way to twisting the original intent of our Constitution. Clearly you are a person who blows with the wind. I see no evidence from you of respect for our Constitution or of the fact that that document is all that lies between citizens of this country and tyranny.

[grlampton]

I think what is being missed here is the purpose behind the doctrine of "orignal intent" or "original meaning": to protect individual rights and freedoms by limiting the power of government, whether the power of elected legislators to create laws or the power of unelected (but properly appointed) judges to interpret both the laws passed by the legislature and the Constitution which is supposed to authorize them. Proponents of civil liberties should support, rather than oppose, a properly understood originalism.

I don't always agree with everything Scalia says or writes. However, he is an intellectually honest, rigorous practicioner of his vision of the originalist conception of judicial review. I believe we need more judges like him.

[Harry969]

As the commenters below note, Andrew Cohen is completely wrong about what Scalia uses to interpret the constitution. Scalia interprets it based on the public meaning that a given constitutional or statutory provision had when it was originally adopted -- not the mental intent of those who adopted it. And Scalia interprets constitutional amendments based on their public meaning at the time they were adopted -- not at the time of the framers of the original constitution. Thus, even for Scalia, the Constitution is to some degree a "living document" -- just not one that gives a judge blanket power to invent new to rewrite the Constitution.

It's ironic to see Cohen attack Scalia for allegedly seeking a "rollback" of constitutional rights. Scalia has joined in some court rulings expanding First Amendment rights (like Texas v. Johnson (flag burning), and Boy Scouts v. Dale (free association)).

By contrast, Andrew Cohen advocated gagging the defense attorneys for the Duke Lacrosse players, in violation of the First Amendment and the players' right to a fair trial, when those attorneys began pointing out the misconduct of the rogue prosecutor Michael Nifong (who was later jailed for a day for misconduct and ethics violations), who tried to prosecute Lacrosse players whom even the North Carolina attorney general admitted were innocent. (see Cohen's blog post at another publication, entitled "Duke, Duke, Duke, Duke of Oil").

Cohen accuses Scalia of trying to roll back rights recognized by the Warren Court. But I think if Earl Warren were still around, he would prefer Antonin Scalia's vision to Andrew Cohen's disturbing vision.

[ContrarianLibertarian]

Anything but Justice Scalia's philosophy puts far too much power in the hands of the judiciary. Also, Mr. Cohen, you obviously don't understand the difference between original intent (divining the intent of the authors of a law) and original meaning (the prevailing understanding of ratified language by those who ratified it). It's a significant difference that any astute observer of the court would understand.

In any regard, Scalia's right on this -- judges shouldn't have the power to amend the Constitution to suit their desired ends. That's not how this was supposed to work.

[HansBader]

I cannot believe that Andrew Cohen is employed by CBS News as a "legal analyst" after he defended disgraded prosecutor Michael Nifong's unethical prosecution of the innocent Duke Lacrosse players, and suggested gagging their defense attorneys.

Almost everything he says about Scalia is false. (And I say that as someone whose views on many subjects, such as gay marriage, punitive damages, and preemption, are very different from Scalia's).

Scalia has never said that the constitution is interpreted solely based on the subjective "original intent" of the framers. No, what he has said is the constitution is interpreted by its original PUBLIC MEANING -- the meaning at the time the constitutional or statutory provision was adopted (which could be a hundred years after the framers, in the case of the 13th, 14th, and 15th amendments, or two centuries later, as in the civil-rights laws).

Cohen is a walking, breathing self-parody of close-minded, sanctimonuous political correctness.

[zachgarber]

Wow. rocket077 and polisigh, you have Scalia wrong. In fact, rocket007, Scalia would agree with the part of your argument about the Constituion be a "living document" in that in can be amended. What he would disagree with is that the meaning of language in the Constitution itself can change meaning. He is for original meaning, not original intent. Original meaning can be applied to changes in society and technology, original intent cannot.

There is a difference between original text and original intent. Scalia does NOT adhere to original intent. He tries to determine what the original text meant, not the intent of the writer which, as you say, would be trapped in the 18th century, Here is Scalia in his own words (from NRO).

"The words of Justice Scalia himself, in, "A Matter of Interpretation," an essay so succinct, compelling, and well-known that Andrew Cohen may be the only "legal analyst" in the nation who is unaware of its existence:

It is curious that most of those who insist that the drafter?s intent gives meaning to a statute reject the drafter?s intent as the criterion for interpretation of the Constitution. I reject it for both. I will consult the writings of some men who happened to be delegates to the Constitutional Convention? Hamilton?s and Madison?s writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus I give equal weight to Jay?s pieces in The Federalist, and to Jefferson?s writings, even though neither of them was a Framer. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."

Hey, Andrew Cohen, you are an expert in legal matters? Really? Hey CBS, I'll do the job for half the salary!