Originalism as misnamed judicial legacy of the Scalia years – 1986-2016

Yesterday, in The Supreme Battle, Canadian constitutional scholar Adam Dodek described a side of the late Antonin Scalia, that few even in the legal community hardly ever saw: a U.S. Supreme Court justice willing to subject himself to honest intellectual debate among peers, even once with Canada’s former Supreme Court justice and champion of legal pragmatism, Ian Binnie.

Dodek nevertheless attributed the lack of success of Canadian legal conservatives to too much inspiration from Scalia, whose strident ideology has found little favour here.  Despite the recent appointment to Canadian courts of jurists reportedly following Scalia’s brand of constitutional fundamentalism, it will take more than that to change the central place of the ‘living tree’ in Canadian constitutional law.

Anti-Scalia sentiment is not hard to find in Canadian legal circles.  It is with some smugness that we, this writer included, feel blessed to have a judiciary that is less politically polarized than the United States’.  Truth be told, many Canadian intellectuals have rejoiced in our judiciary’s opposition to the previous government’s policies without seriously examining whether their joy is a principled one.  In describing the recent U.S. Supreme Court’s grant of constitutional protection to gay marriage in Obergefell (p. 74/103), Scalia dissented and called the majority’s decision ‘today’s judicial Putsch’ within an ad-hominem tirade decrying the lack of legal skill of the majority.

Scalia’s uncivil attack masked a more legitimate debate over the role of the judiciary in the American Republic that Canadians have been too timid to entertain. It is too bad, then, that we may not see past Scalia’s toxic  influence on American law and examine how lack of self-examination has led to constitutional impasse north of the 49th parallel.


Appointed to the Supreme Court by Ronald Reagan in 1986, Scalia has been the standard bearer of the Originalist movement, an ideology embraced by the conservative wing of the court.  The premise of the Originalist approach is that the written terms of the Constitution must be construed in accordance with the literal text and informed by the legislative debate that preceded its enactment.  For Canadian jurists, this approach might be seen in contrast to the ‘living tree’ constitutional model long adopted by our courts, an approach that has its origins in pre-1982 jurisprudence but which has been described as promoting judicial activism in the era of the Canadian Charter of Rights and Freedoms.

As honest legal debate, the textual approach is a valid foil to judicial activism because of the potential for interpretation of laws by an unelected judiciary to usurp the role of the elected legislature and, at the constitutional level, nation-builders behind the enactment of a country’s basic laws.  In Canada, politicians of all stripes have frequently side-stepped divisive political debate by relying on the courts to do their work for them in matters such as abortion, same-gender marriage, and assisted suicide.  Political procrastination in such cases lengthens political careers but deprives the people an opportunity to speak through their legislators.

An Originalist viewing the Canadian constitution would say, for example, that a person who is a victim of unfair discrimination can appeal to the equal rights protections in s. 15 only if the discrimination was against the person for belonging to an expressly protected group.  Canadian courts have interpreted the enumerated grounds as extending the protection to non-enumerated groups, by way of analogy.  The most celebrated example is the extension of the binary word ‘sex’ to include same-sex sexuality, gender identity, transsexualism, and other groups in addition to discrimination against males and females.  Had litigants not brought important constitutional challenges before the courts, the rights of such groups would not have been recognized and their resort would be to the political arena, to seek elusive constitutional reform.

When Scalia was not insulting his colleagues in Obergefell, nuggets of a principled approach to the judicial restraint came through, and gave both liberal and conservative jurists reason to pause for thought:

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win

By extension, this reasoning at the constitutional level would mean that if Americans showed the will to extend equal marriage rights throughout the Union, they should initiate constitutional reform.  Thus, an Originalist approach to judicial power would, ironically, expose the nation’s lack of a working constitutional convention and require governments to devise a functional amending formula and a convention that meets with fixed regularity.  In early America, there were many constitutional reforms, as one would expect in a sparsely populated polity.  Today, the likelihood of obtaining the necessary consensus to achieve such reform is beyond reach: the federal Congress itself hobbles from crisis to crisis on bread-and-butter issues like the government payroll.

Scalia and Frustration of Gun Control

No cause illustrated the hypocrisy of Scalia’s brand of Originalism than gun control.  A scourge that is as serious as drunk driving, the illegal drug trade, or other social ills, the proliferation of death by civilian ownership of guns is a product of American jurists.  (I say ownership of guns, to get past the mantra that ‘guns do not kill people, people do.’)

After triumphs in the judicial role in the Civil Rights Movement and the protection of the rights of women, the inability of legislators at all levels of American government to enact gun control legislation can be laid at the steps of the U.S. Supreme Court.  Strengthened by a revisionist view of the 2nd Amendment right to bear arms as a right of individual Americans, law after law has fallen to the judicial pen.

At the centre of the controversy is, of course, the 2nd Amendment of the U.S. Constitution, which reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Does the phrase, ‘the people,’ refer to you and me individually, or to our right to band together and stop the federal government’s troops from imposing a police state?  In the 1939 Supreme Court decision in Miller, it was held that the 2nd Amendment did not grant the court power to strike down federal gun control regulations because of the wording of the 1791 text and the historical context of preserving the federal nature of the revolutionary government.

Since Miller, U.S. courts have incrementally adopted a more individualist view, through well-financed constitutional challenges to gun regulation.  The 2008 Heller decision was a landmark triumph for proponents of unrestricted gun ownership because the majority turned Miller on its head and boldly recognized an individual right to gun ownership.

In Scalia’s majority opinion in the 2008 Heller decision, the 2nd Amendment nod to the antifederalist concern about a federal army disarming the citizens’ militia morphed into an individual right of self-defence using a firearm.  The debate between the majority and dissent included a healthy debate as to whether the 2nd Amendment text actually refers to individual or collective rights.  The Originalist analysis focused on the nature of the importance of militia participation among early American republicans.

The disservice performed by the majority in Heller was that the interpretive exercise was as tortured as the worst textual crimes committed by the judicial activists Scalia enjoyed criticizing.  The small-minded fixation on militia as band of armed community watchmen overcame the more important, more visionary architecture of the U.S. Constitution as a model constitution for all free men (and later women) to enjoy the pursuit of happiness in safety and security.

By interpreting the 2nd Amendment as including individual right to possess firearms against threats such as burglars and home invasions, it is impossible to rewrite the text to reflect the original intent to preserve the militia as a safeguard against central government and tyranny.  A court that says, black includes white, the legislator cannot rewrite the text to limit it to black because there is nothing to rewrite.  There can be no constitutional convention, no referendum, no debates on the floors of state assemblies or Congress to amend something that would require no amendment but for the Originalist gloss interpreting the statute in a manner that betrays the purpose of the country’s founding document.  This applies not only to a bench that plays to a ‘conservative’ constituency but also a ‘liberal’ bench that attempts to interpret the constitution to effect social reform.

Whatever one’s view of the historical anchor for interpreting constitutional texts, Scalia and his acolytes have eroded the judicial power won by John Marshall in the Marbury decision – to say what the law is, not what it should be.  Scalia’s intellectual arrogance has deprived the American people the opportunity of a balanced political debate about gun violence that deprives the population of its safety and security.  If state and federal legislators, responding to outcry over massacres, enact laws to curb gun ownership, Heller stands in the way, not the U.S. Constitution.

A More Perfect Union of Legislation and Litigation

In Canada, we have learned that when politicians fail to act, citizens with civil rights complaints bring law suits.  From issues ranging from the right to die with assistance, to unduly long wait times for hip replacements, and many in between, Canadians have learned to embrace Charter litigation because it has been a vehicle for law reform. We must recognize this essential calculus of the rule of law in a pluralistic society.  The legislator and the jurist must both function, if we are to live up to the Canadian ideal of delivering peace, order and good government.

The failure to see the judiciary as a safety value in addition to being a temple of legal scholarship is the basic political flaw of the Originalist ideal.  Originalism has failed to see that if, after politicians fail and the courts refuse to hear the law suits, the same citizens become outlaws.

So it was in 1776, and the late Justice Antonin Scalia never got that history lesson.

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