“Fundamentalist Constitutionalism”: Punctuation Marks, Antonin Scalia, And The Farce Of “Originalism”
I have no idea whether Supreme Court Justice Antonin Scalia is heading to the beach this summer now that he has made America safe for religious employers to discriminate against their female employees. Nor do I have any idea whether Danielle Allen’s new book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality” is on his beach-reading list. But it should be.
You have probably heard about the book and its assertion that there is a significant typo smack in the middle of the Declaration’s most famous part. We read the phrase “life, liberty and the pursuit of happiness” with a “.” at the end. It’s not there in the original, according to Prof. Allen. It was added in later versions, as a mistake or perhaps even as a small spot of errant ink. The result, Allen asserts, is a dramatically different meaning to the entire document.
Historians will debate the conclusions Allen has drawn from her detective work, but those conclusions aren’t the reason Scalia ought to read the book. Rather, it is that starting premise about the punctuation that should give him pause (I know, it won’t) because it succinctly puts the lie to the entire enterprise of Constitutional “originalism” upon which Scalia has built his career.
Originalism, briefly put, is a jurisprudence resting on the following wobbly assumptions: the Constitution only has one meaning; that meaning can be known without ambiguity (by those smart enough to read it); all laws ought to be judged against that singular, unchanging meaning. Not too long ago originalism resided on the lunatic fringe of legal thinking, sort of like Ayn Randian economics. Over the last generation it has entered the mainstream, sort of like Ayn Randian economics, and no one has been more responsible for that than Antonin Scalia.
Opponents of originalism have often argued instead that the Constitution needs to be a “living” document, adaptable to a changing society. That view became prominent a century ago as legal thinkers, among them Woodrow Wilson and Oliver Wendell Holmes, tried to reckon with a rapidly changing industrial society. And to these Scalia and his comrades have said that the Constitution is resolutely dead and should be read historically, not in light of contemporary society.
But as the business of the pesky punctuation in the Declaration of Independence reminds us, words can mean different things and can be read in different ways. and even small changes in a sentence can yield different ideas. We know what Hamlet’s “To be or not to be” soliloquy says, but any high school junior can tell you that it might have any of several meanings. Or all of them. Or none of them.
Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst. All acts of reading are necessarily acts of interpretation, and as a consequence there are no objective truths nor single meanings. The most we can do is achieve a best consensus, recognizing that it might change in the future.
Scalia knows all of this, I suspect. I don’t think even in his extraordinary arrogance and self-regard he believes he can know exactly and perfectly what was in the minds of all the delegates who wrote the Constitution. And indeed, whatever one thinks of Scalia as a jurist, his track-record as a historian is shoddy, filled with cherry-picked examples, incomplete understandings and downright risible conclusions. The history Scalia presented as part of his majority opinion in District of Columbia v. Heller wouldn’t pass muster in my undergraduate seminar.
Scalia’s real goal in promoting “originalism” is to remove Constitutional issues from the realm of political debate altogether and treat them instead as theological dogma.
“Originalists” like Scalia read the Constitution in much the same way that fundamentalist Christians read the Bible. In the world of those conservative Christians, the Bible says what it says, there is no room for any interpretation of it, and the Bible is inerrant. In fact, we might coin a new term, “fundamentalist Constitutionalists,” since there is now a small but growing number of people convinced that the Constitution, like the Bible, may have been written by men but was actually inspired by God.
While this kind of reading may be intellectually indefensible – or downright silly – it does have the advantage of bestowing extraordinary power on those who can claim to possess The Truth, whether huckstering evangelical, tyrannical bishop, or snarky Supreme Court justice.
Ironically, of course, we will look back on “originalism,” or “fundamentalist Constitutionalism,” as being entirely of its political and cultural moment. One hundred years from now, we will see it as engineered by revanchists like Scalia who recoiled at the dramatic social changes of the recent past – civil rights, feminism, gay rights, and more – and thought they could use the Constitution to retreat into a past largely of their own invention. Future scholars might even debate what, exactly, Antonin Scalia meant as they parse his body of writing, and might find that his very words could be subject to multiple readings. That would be the final, most delicious and fitting irony for “originalism.”
By: Steven Conn, Author/Professor, Ohio State; The Huffington Post Blog, July 7, 2014
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