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Thread: Is Justice Scalia abandoning originalism? By: Josh Blackman and Ilya Shapiro WashingtonExaminer.com

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    http://www.washingtonexaminer.com/op...-87084227.html

    Justice Antonin Scalia holds himself out as the patron saint of originalism, the idea that judges should interpret the Constitution according to its original public meaning. To do otherwise, he adds, is to succumb to government by black-robed philosopher-kings who fill the empty vessel of a “living Constitution” with their own policy preferences.

    Last week, however, in a case building on Scalia’s own landmark opinion in District of Columbia v. Heller—which found that the Second Amendment protects an individual right—when the justice was faced with a golden opportunity to advance originalism, he blinked. And in rejecting originalism, Scalia cited the un-originalist reason that following a different—and clearly incorrect—line of precedent was “easier.”

    The case at issue, McDonald v. Chicago, involves a challenge to Chicago’s gun ban and seeks to extend the right to keep and bear arms to the states—as nearly all other provisions in the Bill of Rights have been extended.

    The Court could take two possible routes, both under the Fourteenth Amendment, to apply, or “incorporate,” the Second Amendment right against the states: the Due Process Clause and the Privileges or Immunities Clause.

    Scalia has long crusaded against the former, which encompasses the “substantive due process” doctrine. To Scalia, this doctrine—which has protected rights based on alleged constitutional “penumbras and emanations”—embodies the judicial activism that is the bane of his jurisprudence. Scalia has attacked substantive due process as an “atrocity,” an “oxymoron,” “babble,” and a “mere springboard for judicial lawmaking.”

    Largely as a response to this sort of “judicial usurpation,” Scalia has advanced his theory of originalism. To interpret the Fourteenth Amendment, for example, a judge should look at how the amendment was understood at the time of its ratification in 1868.

    McDonald presents originalist judges the perfect chance to restore the original meaning of a long-abused constitutional provision: In 1873, a Supreme Court unwilling to accept Reconstruction-era changes to our constitutional order—with the federal government empowered to check state oppression—eviscerated the Privileges or Immunities Clause. By reinvigorating that clause, the Court can scale back a warped Due Process Clause that has been misused in a clumsy attempt to protect individual rights.

    Without the Privileges or Immunities Clause, however, the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment!

    Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.

    In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”

    Given Scalia’s epic enmity for substantive due process, why would he now turn his back on decades of his own hard labors and suddenly endorse the controversial doctrine? In his own words, because it is “easier.”

    Granted, Scalia has been far from a down-the-line originalist. On more than one occasion, where originalism does not achieve the result he wants, he ignores the history and stands by precedent. (Most recently, Scalia voted to uphold the federal power to trump state regulation of medicinal marijuana, even if the drug never crosses state lines.) To explain these variances, Scalia has called himself a “faint-hearted originalist” or an “originalist, but not a nut.”

    But if the opinion Scalia joins in McDonald matches his signals at argument, the justice will no longer be able to call himself an originalist of any kind. He will have to turn in his O-card and leave Clarence Thomas as the only originalist on the Court. (Not coincidentally, Thomas is the only justice on record as favoring a revival of the Privileges or Immunities Clause.)

    The Court has nearly four months before it issues its McDonald opinion. We can only hope that the straying Saint Originalism returns to the catechism he has taught so well.

    Josh Blackman is the president of the Harlan Institute and blogs at JoshBlackman.com. Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute.

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    Scalia was really disrespectful to Gura, who was merely arguing that an honest review of the letter of the law be done because Slaughterhouse clearly has an odd interpretation of P&I.
    That being said, I think he just knows that the rest of the court isn't interested in P&I AT ALL, so he's just going along to get along.
    From listening to a lot of what he's said and reading a few of his opinions, he's most interested in getting clear ruling that lawyers can work with (i.e. everyone knows what the standards are in the law).
    I am still thoroughly disappointed in him and the Court.

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    Interesting take on it. I am far from a constitutional or SCOTUS scholar so only have a layman's take on this. When I read the comment including "easier" I was puzzled as to whether he meant easier to get a majority to incorporate in the spirit of Heller, easier long term because of the potential firestorm of other challenges to government power that could arise from overturning the Slaughterhouse Cases, easier for him to make an argument or write an opinion or some combination or something else entirely.

    After thinking about it a bit, given the makeup of the court I was leaning towards his meaning "easier" to get a majority under due process than P&I because among the other justices only Thomas seems inclined to open up the P&I issue.

    This is quite an interesting issue that goes far beyond 2A issues and into a broader spectrum of citizen rights v gov't expansion. It seems that overturning Slaughterhouse, et al and reinstating P&I under the 14th as most scholars agree it was intended would be an enormous step in limiting the federal gov't in our everyday lives, something one would think that the liberal justices would embrace in the name of civil rights. Their objections to it seem to indicate an embracing of an ever larger gov't to enforce their policy agenda rather than a smaller, more limited gov't narrowly limited to its constitutional duties. The horror of that position obviously is that history tells us that an ever expanding gov't moves towards totalitarianism rather than citizen freedom.

    The final opinions should be a very interesting to read. I'm thinking we will have a minimum of three and more likely 5 separate opinions in a this likely 5-4 Heller-esque decision.


    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    deepdiver wrote:
    ....* When I read the comment including "easier" I was puzzled as to whether he meant:
    * easier to get a majority to incorporate in the spirit of Heller,
    * easier long term because of the potential firestorm of other challenges to government power that could arise from overturning the Slaughterhouse Cases,
    * easier for him to make an argument or write an opinion or some combination or something else entirely.
    *
    I think you're hitting on all cylinders. ALL of these comprise his line of thinking.
    I've never been very comfortable with Scalia. Even some aspects of his, albeit great, opinion in Heller make me very worried.
    On P&I, he knows the "Liberal Wing" of the Court isn't interested in civil rights, CERTAINLY not those that exist prior to our government. They're simply Statists who recognize those Right given to the People by the government. Incorporation of Rights through Substantive Due Process fits this paradigm perfectly

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