Hobgoblins of Little Minds

This Peter Suderman post, arguing against a “liberal Scalia” of the type Dahlia Lithwick and I would like to see on SCOTUS, is quite irritating:

Scalia’s views are relatively clear and straightforward: We know what words and sentences mean, and that’s what we use when interpreting the law. And as far as the Constitution goes, we not only know what it means, it’s also always meant the same thing, and it’s always going to.

What’s the liberal alternative to this? We don’t know what words mean, exactly, and sometimes we should use other words outside the law, which may or may not mean what they seem to mean, to help us figure out how to understand legislation? And the Constitution may mean one thing today (although it also may not), but either way it might not mean that tomorrow?

There are two obvious issues here. First, this sort of simplistic militancy isn’t exactly a virtue, as Freddie notes in TAS‘ comments. Second, this narrative isn’t even true. As Jack Balkin has argued, no conservative jurist, not even Scalia or Thomas, fully embraces an originalist interpretation. Applied consistently, that approach would invalidate all independent federal agencies (CIA, FCC, Federal Reserve), end state-level application of the Bill of Rights (incorporation wasn’t the original intent of the 14th amendment), and allow for far more discrimination against women and minorities than is allowed under current Equal Protection clause jurisprudence. All of which is why no one applies it consistently. The idea that they’re some coherent, universally applied conservative constitutional theory that Scalia’s propounding is just plain wrong.

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