Celebrating 56 Years on the Bench and Bar

From Great Dissenter to Constitutional Defender: A Document Oriented Tribute to the Text-Centric Jurisprudence of Antonin Scalia

Life Before the Court

On February 12, 2016, Associate Justice Antonin Scalia passed away at the ripe old age of 79 due to natural causes.[2] Scalia, or Nino, as his colleagues and family members affectionately called him, was born in Trenton, New Jersey on March 11, 1936, to Catherine Panaro, an elementary school teacher, and Salvatore Scalia, a professor of Romance languages at Brooklyn College.[4] To this very day, Scalia’s schoolyard friends still recall his overawing intelligence and Catholic fervor.[5] It is thus no surprise that he went on to graduate first in his class at Georgetown in 1957 and obtain a Juris Doctor magna cum laude from Harvard Law School three years later.[6]

Scalia spent his first six years out of law school working for the Ohio law firm that would later become Jones Day, but left his job as an associate to become a professor of law at the University of Virginia.[7] After teaching law at UVA for three years, Scalia joined the Nixon administration and quickly scaled the Republican legal ranks. Within three years he had moved from the Office of Telecommunications Policy to the Administrative Conference of the United States to the prestigious Office of Legal Counsel.[8] Scalia remained at the OLC when Gerald Ford took over as President, and used his sharp wit to defend Ford’s assertion of executive privilege over Nixon’s records at many a congressional hearing.[9] The GOP establishment took dutiful note of Scalia’s loyalty and ability to outmaneuver congressional committee counsel.

Several years later, Scalia was rewarded for this service with a seat on the D.C. Circuit Court, and soon after a place on the Supreme Court. There, the newly minted justice became one of the leading champions of public meaning originalism, a theory of constitutional interpretation that encouraged judges to adhere closely to the public’s understanding of the Constitution’s text at the time of its enactment.[10] Scalia’s obsession with the text also extended beyond the twenty-five percent of cases on the Court’s docket that cover constitutional issues.[11] Indeed, he gained notoriety for his cynical views of Congress, and his conclusion that legislative history was unimportant.[12] Instead, Scalia emphasized exclusive use of the print within the four corners to determine the intent, purpose, and statutory equity.[13]

In many ways, Scalia’s legal philosophy was not revolutionary.[14] Rather, it was the way in which he defended his beliefs that broke new ground. Combining the doctrinal sensitivity of Felix Frankfurter, the scholarly tradition of John Marshall Harlan II, the artfulness of William Rehnquist, and the pretentiousness of Warren Burger, Scalia became a judge who helped define the political and legal agenda for a generation of Americans.[15] As we remember him and the joy (or frustration) that his craft facilitated, it is only fitting that his eulogy take the loose form of the document he dedicated his life to defending and protecting.              

Constitutional Jurisprudence

Article I

“All legislative Powers herein granted shall be vested in a Congress of the United States”

When the Article of Confederation Congress submitted the Constitution to the states for ratification in September of 1787, the document immediately came under fire.[16] In particular, the constitution’s opponents repeatedly claimed that the document would create a federal government that would eventually consolidate the states into trivial administrative bodies.[17] To their credit, Federalists, led by Alexander Hamilton, James Madison, and John Jay, readily denied these claims by adopting a superficial interpretation of the necessary and proper clause that resembled the construction Jeffersonian Republicans would adopt five years later when Congress created the First Bank of the United States.[18] This move likely convinced nervous convention delegates in Virginia and New York to vote for ratification.[19]  

To the extent that this move by the framers was illustrative of the original public understanding of the document, a public meaning originalist such as Scalia should feel bound to uphold this understanding – and Nino did not disappoint.[20] In United States v. Comstock, Scalia co-authored a caustic dissent that excoriated the majority in that case for refusing to invalidate a federal statutory provision that authorized the detention of mentally ill prisoners.[21] While Scalia agreed with the majority that the law was desirable on utilitarian grounds, he refused to depart from the text and give Congress the ability to do everything necessary and proper to carry out a power it did not have in Article I § 8 – ensure the safety of local communities.[22] If the true test of a man is to check an exercise of power he agrees is prudent on normative grounds, Scalia was made of tough stuff, indeed.

But Scalia didn’t simply force Congress to follow the letter of the law; he also prevented the institution from handing too much power to administrative agencies. In Minstretta v. United States, Scalia’s powerful dissent brought attention to the Court’s voluntary recusal from enforcing a strict separation of powers through the nondelegation doctrine and the alarming dissonance that this abstention created between the constitution’s text and the growing administrative state.[23] In so doing, Scalia encouraged the Court to re-empower state and local governments so that the American people could use these laboratories of democracy to solve problems with distinct regional circumstances.[24]

“The House of Representatives…and the Senate of the United States shall be composed”

Scalia consistently applied a localist theory of representation in interpreting other provisions in Article I. For example, in U.S. Term Limits v. Thornton, Scalia adopted James Bradley Thayer’s clear-mistake thesis, which calls for judges to only strike down legislation that unquestionably violates the constitution, and voted to sustain an Arkansas term limit statute that would have prevented entrenched incumbents from running for another term in the House.[25] In doing so, Nino remained true to the underlying purpose of Article I § 2 – maximizing political liberty.[26] In some ways this reading of Article I also defined Scalia’s pragmatic approach to executive power.

Article II

“The executive Power shall be vested in a President of the United States of America”

In McCulloch v. Maryland, a case in which the Court established the national government’s power to charter a bank that was exempt from state taxes, John Marshall declared that “a Constitution,…contain[ing] an accurate detail of all the subdivisions of which its great powers will admit,…would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”[27] Marshall understood that a constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”[28] These statements contain an implicit endorsement of constitutional construction, the practice of using political and normative criteria to establish the meaning of ambiguous clauses in the constitution.[29] Impeachment conviction standards, executive removal of cabinet officers, prohibitions on packing the Supreme Court, and unilateral presidential treaty terminations are all examples of such constructions.[30] Scalia’s constructions of both the executive power and key federal statutes affecting the executive power were notable for giving the executive breathing room to wage war against terrorist groups and protect core civil liberties.

Clinton v. New York exemplifies this theme.[31] In that case Scalia, in dissent, voted to sustain the president’s line-item veto power on the grounds that Congress could delegate authority to the executive to cancel unnecessary spending that it had authorized beforehand. Scalia’s Clinton dissent was laudable not only because it adhered closely to two prior Marshall and Fuller Court precedents, that had long settled the issue of executive discretion on ministerial spending matters but also because it recognized the need for executive flexibility when implementing poorly drafted omnibus budget statutes – a problem that persists to this day.[32]

On the other hand, Scalia’s unwavering adherence to statutory texts yielded a mixed legacy. For instance, in Hamdi v. Rumsfeld, Scalia refused to interpret the Authorization of Unilateral Military Force broadly so as to allow the Bush administration to ignore 28 U.S.C. § 2241, the federal habeas corpus statute, and indefinitely detain an enemy combatant being held in the United States without a trial.[33] However, in Rasul v. Bush and Boumediene v. Bush, Scalia was unwilling to depart from the text of the statute by extending the habeas remedy to combatants detained in facilities overseas.[34] The results may have been disconsonant but the principle was clear: the rule of law mandates that the text of the law not the heart of the man controls in hard cases.[35]

Scalia also made sure that Article III would be read in a way that closed the courthouse door to individuals who lacked standing. This interpretation of Article III incentivized organizers of social movements to concentrate on mobilizing marginalized groups and thus reduced unnecessary litigation in federal courts.

Article III

“The judicial Power shall extend to all Cases [and] Controversies”

In the United States, courts are reactive institutions that settle individual disputes between parties that can show a concrete injury, identify a party responsible for causing that injury, and propose a feasible method of redress to make the injured party whole.[36] At times, these standing requirements can make it difficult for public interest groups such as the Sierra Club to pursue legal action.[37] In Lujan v. Defenders of Wildlife, Justice Scalia invoked these standing requirements to toss out a case brought by a similar environmental group.  In that decision, Scalia ruled that the group’s lawsuit must fail because the group’s members lacked an imminent injury (they claimed that President Reagan’s decision to help the Egyptians repair damage to the Aswan Dam ‘injured’ them because these repairs could harm endangered crocodiles living in the Nile River) and there was no way for the Court to grant them relief (even if Reagan refused assistance other nations were willing to provide the aid).[38]

Environmentalists strongly criticized Scalia for slamming the Court’s doors on their claims, but it was not entirely clear that this development was normatively bad in the long run. Several legal sociologists have opined that pursuing social change through courts can be ineffective or even counter-productive for groups seeking to establish politically cogent movements.[39] These scholars have argued that courts individualize conflicts, which distracts from the problems’ macro-social dimensions, and leads other like-minded individuals to think that an issue does not directly implicate them.

For example, when an individual of color alleges that a job entry test discriminates against her, her complaint, of necessity, is phrased in a way that makes it seem as if her injury is a unique phenomenon that affects her alone. This rhetoric distracts from the fact that this discrimination is not in all likelihood coincidental but is probably the product of centuries of economic, social, and political subordination along gender and class lines. The result is that when a bystander hears of such an event, they regard it as isolated and exceptional when in fact it is part of a much larger injustice that would be more apparent if the injured individual was to engage in collective action and make others realize that they too are being injured by systemic social ills.[40] By limiting these individualized claims, Scalia encouraged democratic organization. He strongly protected this organization through his First Amendment jurisprudence.

The Bill of Rights

The First Amendment

“Congress shall make no law respecting an establishment of religion or prohibiting free exercise thereof or abridging the freedom of speech, or of the press”

Of course, the notion of an enumerated bill of rights and a controlling set of natural law principles that restrained government action were not American inventions.[41] The Magna Charta of 1215, the English Bill of Rights of 1689, and various other declarations of rights in the state constitutions all provided an ideological backdrop for the First Congress’ drafting of the first ten amendments in 1789.[42]

But as a purely historical matter, it is important to note that earlier generations of Americans did not regard the Bill of Rights with nearly the same degree of reverence that we do today.[43] Indeed before 1868, not one Supreme Court opinion made reference to the first eight amendments collectively as the bill of rights. Chief Justice Marshall’s reference to the search and seizure clause in Ex Parte Burford was typical of the era “by the 4th article of amendments to the constitution of the United States, it is declared the right of the people to be secure in their persons, houses, papers, and effects shall not be violated” [emphasis added].[44] To be clear, the courts did think that “as independent tribunals of justice” they were to be “guardians of those rights.”[45] Enforcement, though, was originally perceived as a means to protect the rights of the states and their citizens from federal interference.[46]

However, the fourteenth amendment, footnote four in Carolene Products, and the Warren Court’s campaign of selective incorporation gave the Bill of Rights an undeniably individual-centric interpretation in the twentieth century.[47] This shift has had immeasurable effects on First Amendment theory. Concern for states’ rights was displaced by self-government, truth advancement, and personal autonomy as the primary rationale for protecting free speech (and to a lesser extent religion).[48] Justice Scalia’s body of work in this area suggests that he has been guided by the latter approaches.        

**Viewpoint and Content Based Restrictions **

Under the First Amendment, there are certain kinds of speech that the government can regulate without having to offer an important or compelling reason.[49] Speech leading to the direct incitement of violence, ‘fighting words,’ and obscenity are but a few categories that the Court has delineated in the last half century.[50] It is important, however, to recognize why these categories are unprotected. The state is not allowed to target these types of speech as a means of suppressing messages that it disagrees with substantively or banning wholesale communication on a subject. Rather, the speech has “to be of such slight social value as a step to the truth that any benefit that may be derived from it is clearly outweighed by the social interest in order.”[51] This distinction makes perfect sense. If the goal behind a hypothetical regulation that prevents you from inciting a riot is to ensure safety, then a regulation that only prevents you from inciting riots on certain issues suggests that the state is really trying to target an idea or subject rather than promote public safety. In R.A.V. v. St. Paul, Scalia wrote the lead opinion invalidating a municipal ordinance that singled out certain prejudiced viewpoints and subject matter for state sanction.[52] The Court’s broad reading of the First Amendment in R.A.V. is not an isolated trend, however.[53] Likewise, in Brown v. Entertainment Merchants Association, Scalia, writing for the Court again, held a California statute banning minors from purchasing violent video games unconstitutional, in part because violence did not fall under the obscenity exception.[54] R.A.V. and Brown demonstrate that Scalia’s rationale for protecting speech was not one-dimensional and treated communicative expression as both a means facilitating the discovery of the truth in “the free market of ideas” and an end that has intrinsic worth to the speaker respectively. One wonders, though, if the free market rationale is normatively desirable.     

A Note on Free Market Theories of Speech

The flaw with the free market of ideas is that it is prone to malfunction like any other market and, conceals deep seated inequality.[55] The moral relativism that characterized Scalia’s opinions in R.A.V. and Brown appears to be neutral on its surface because it does not formally assign a privileged position to one set of ideas. But, by deferring to the decisions of the market place, which is dominated by a few mass communications managers who cater to the racialized, gendered, and class prejudices of viewers and listeners, the Court reinforces existing disparities.[56] When one further considers the fact that access to mass media communication is unequal, the marketplace creates a mentality where right and wrong, as well as true and false are predefined by the powers that be whenever the vital interests of society are at stake.[57] In this context, allowing individuals to spend as much as they want during an election cycle, advertise prescription drugs with dangerous side effects, or engage in racist or sexist hate speech on the grounds that it promotes the discovery of truth in a market with unfair procedural rules makes one a party to the crime not a neutral referee.[58]

Eight generations of bigotry is enough. Hate speech may be speech but it does not follow from this fact that it is deserving of First Amendment protection. Those who retort that this would lead to a slippery slope, culminating in state-sanctioned censorship, would do well to look beyond our shores. Every other western democracy has managed to accept this fact and preserve robust political debate. I see no reason why the United States must be exceptional in this regard. In this context, the meaning of the expression ‘free speech’ is perverted when it is used to stop the government from hastening the arrival of true equality by regulating utterances that are representative of the darkest moments in this nation’s history. But because liberals and conservatives alike share Scalia’s free market perspective on speech in most instances, it would be unfair to blame the late Justice for overlooking this pitfall.[59] Scalia was a product of his times nothing more, nothing less but perhaps future generations will compensate for this bi-partisan and reactionary shortcoming. If they attempt to, however, they will have to reckon with the Justice’s brainchild constitutional theory: originalism.                  

The Second Amendment

“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”

As I previously mentioned, originalists believe that judges should interpret the Constitution in a manner that is consistent with how the document’s provisions were understood in late eighteenth century America.[60] Originalists argue that their theory is normatively desirable because it is ‘neutral’ and prevents judges from reading their policy preferences into the Constitution.[61] This statement, though, raises a critical question: whose understanding should be prioritized? Originalists are divided on this question but, speaking broadly, there are two predominant schools of thought. Original-Intent originalists, such as Reagan Attorney General Edwin Meese III and D.C. Circuit Judge Robert Bork, believe that the founders’ original intent should be controlling.[62] By contrast, public meaning originalists such as Scalia and Georgetown Law Professor Randy Barnett believe that judges should prioritize the meaning that an average speaker of English would have assigned to a constitutional provision during the ratification process from 1787-1788.  To paraphrase the late Justice, this originalist theory is premised on the fact that the meaning of a given constitutional clause is locked in at ratification, which means that the constitution is “not a living document.” Rather, it is “dead, dead, dead.”[63]

Both drafter-intent and public meaning originalism are distinctive theories of constitutional interpretation because they place historical methodology at the center of the interpreter’s task.[64] If the original intent of the ratifiers or the public meaning of the text is supposed to be dispositive in cases where the result turns on the text’s meaning then, ideally, the judge or clerk conducting the historical research to unearth this meaning would use accepted and rigorous historical methods to accomplish this goal.[65] However, with a few exceptions, most judges and lawyers are not professional trained historians and frequently engage in ‘law office history,’ or selective quoting of legal materials in order to bolster an argument that they are making.[66]

This practice is very problematic for practitioners and academics who advocate for originalism.[67] To be sure, the mere fact that a theory can be implemented incorrectly does not prove that it should never be used. However, if the purpose of the theory is to ensure that judges do not exercise a level of discretion that allows them to legislate from the bench, the infinite number of choices that an interpreter may exercise when writing an opinion undermines this objective in a fatal fashion.[68] The following example demonstrates why this is the case.

Assume for the moment that the reader is called upon to determine the meaning of this very cryptic phrase: “the executive Power shall be vested in a President of the United States of America.”[69] Where is she or he to turn first? Will Max Farrand’s Records suffice or do only the opinions of the ratifiers matter?[70] If the latter, do John Elliot’s Notes provide a comprehensive account of what transpired in the state conventions or is it insufficient?[71] Which outside sources should be brought to bear in determining the answer to the question: The Federalist, James Wilson’s speeches to the Pennsylvania ratification convention, and/or Brutus’ unusually perceptive tracts?[72] Are the opinions in these pieces genuine or were they released with ulterior political intentions?[73] What should we make of the fact that some delegates never spoke on an issue? How can we assign a single mental intent to 2,000 different actors meeting in fourteen different locations at different moments in time?[74] At what level of abstraction shall we define the question (ex. Does the original meaning of the due process clause protect the right to marry or the right to marry a person of the same sex when no criminal penalties are thrust on the bride and/or groom and the couple is only seeking to force the state to issue a marriage license)?[75] These concerns illustrate that there simply cannot be one ‘correct’ answer to the question of original meaning, and that a judge who lacks a Ph.D. in history is bound to make a substantive or methodological mistake.

Unfortunately, District of Columbia v. Heller and to a lesser extent McDonald v. City of Chicago, two cases that applied the second amendment against the national and state governments respectively, are painful demonstrations of this lesson.[76] In Heller, Scalia wrote a sixty-four page opinion that drew on a potpourri of case law, treatises, and late eighteenth century state papers in arguing that the second Amendment protected the individual right to bear arms.

The Heller opinion, however, contained several substantive and methodological mistakes. In defiance of accepted methods of interpretation at the founding, Scalia effectively read the amendment’s preamble out of the provision, ignored the collective militia rational for the amendment, cited a 1998 case on statutory interpretation as justification for his reading of a constitutional clause that was not at issue in the case, selectively cited state bills of right from the late 1700s that were recommendatory and not legal binding or judicial enforceable, and ignored this nation’s long history of firearms regulation.[77] The evidence was so overwhelming that a group of professionally trained historians who filed an amicus curiae brief in the case unequivocally concluded that “the authors of the Second Amendment would have been flabbergasted to learn that [the provision] precluded restrictions on potentially dangerous property” such as firearms.[78] Good law and good history are two conceptually different things.

Nevertheless, if one believes that the constitution’s meaning changes over time to accommodate novel situations, the result in Heller can only be objectionable on normative grounds. Since the birth of the gun rights movement in the 1970s, there has been an increasingly large percentage of Americans who do happen to believe that the amendment protects their right to keep a handgun for personal safety, notwithstanding its original meaning.[79] However, because Scalia’s brand of originalism was premised on the very notion that the constitution is a dead, not living document, Heller fails on its author’s own terms. In his quest to constrain judicial discretion, Scalia embraced the very theory he sought to destroy. Unfortunately, the late Justice’s record on the Fourteenth Amendment’s equal protection and due process clauses is also disheartening even for an originalist.            

The Fourteenth Amendment

“No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The due process and equal protection clauses complement one another on two different dimensions. First, assuming the absence of external inequality, fair procedures in a civil or criminal government hearing (in other words due process of law) are only fair if they are administered equally by treating like cases alike and different cases differently.[80] In support of this interpretation is a wealth of historical materials suggesting that the equal protection clause was originally intended to call into question laws that impose undue and unequal hardships on vulnerable groups for no rational, coherent reason.[81] The Fourteenth Amendment was passed in part because Congress wanted to ensure that the Civil Rights Act of 1866, which guaranteed the right of freed African-Americans to contract with one another, would not be struck down as unconstitutional.[82] The 1866 act was aimed at eliminating class legislation, or laws such as the infamous ‘Black Codes’ that imposed exceptional burdens on some while exempting others.[83] While laws that facially discriminate on the basis of race are rare in 2016, laws that have a disparate impact on minority groups or are the unconscious products of subtle racism, sexism, or economic class preferences work similar mischief albeit in more limited forms.   

Second, these provisions must be read to guarantee more than procedural propriety because there are certain substantive rights that are fundamental and implicit in the “very essence of a scheme of ordered liberty” such as the notion that the state may not put someone on trial for a crime if the criminal action was perfectly legal when it was committed.[84] In this context, even if the trial was free of procedural errors and the outcome was consistent with other cases that presented similar facts, we would all still have a substantive reservation about the trial because the defendant had no way of knowing that her or his action would lead to criminal penalties. The problem, however, is that, for the most part, these substantive rights are not enumerated in the Constitution.[85] The omission of these rights, though, does not mean that they do not exist or are not entitled to judicial protection because the ninth amendment says in no uncertain terms that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[86] To ignore the existence of these rights and deny them judicial protection is to disparage them.    

In his twenty-nine year career on the Court, though, Scalia ignored and disparaged almost every equal protection and due process claim he heard. African-Americans,[87] women,[88] LGBT individuals,[89] and victims of partisan gerrymandering,[90] inter alia, were all turned away on the grounds that their rights were subject to whims of the political process, or that the political process was powerless to remedy centuries of discrimination against them. Scalia apparently sung a different tune when a southern governor seeking to overhaul a presidential election recount claimed that counting every ballot would violate his rights to equal treatment.[91] In retrospect, one could have only hoped that Scalia would have remembered the words of Mr. Justice Robert F. Jackson, the man who sat in the very seat Scalia occupied for three decades, and declared that:

Jackson’s words remain as true today as they were the day he uttered them. Let us hope that Merrick Garland or whoever ends up filling Nino’s seat heeds them. In the meantime, may Justices Jackson and Scalia requiescant in pace.      

—

References

[1] I wish to send a special thanks to federal appellate court judges Michael W. McConnell and Thomas B. Griffith for their mentorship and support.  

[2] Adam Liptak, “Antonin Scalia, Justice on the Supreme Court, Dies at 79” THE NEW YORK TIMES (February 13, 2016). “Supreme Court Justice Scalia Dead at 79” FOX NEWS CHANNEL (February 13, 2016).

[3] David Savage, “Supreme Court Justice Antonin Scalia dies at 79; ardent conservative fought liberalism’s tide” THE LOS ANGELES TIMES (February 13, 2016). Martin Pengelly, “Supreme court justice Antonin Scalia dies: political and legal worlds react” THE GUARDIAN (February 13, 2016).

[4] Robert Barnes, “Supreme Court Justice Antonin Scalia dies at 79” THE WASHINGTON POST (February 13, 2016). Greg Stohr, “Antonin Scalia, Conservative High Court Justice, Dies at 79” BLOOMBERG NEWS (February 13, 2016).

[5] Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Sarah Crichton Books/Farrar, Straus And Giroux, 2009) 22. Eric Fuchs, “Scalia Says There Were Benefits To Excluding Women From Most Jobs” THE BUSINESS INSIDER (April 7, 2013).

[6] Susan Page, “Justice Scalia Found Dead at Texas Ranch” USA TODAY (February 13, 2016). Nicole Hong, “Legal World Reacts to the Death of Justice Scalia” THE WALL STREET JOURNAL (February 13, 2016).

[7] Christopher Danzig, “Justice Scalia: Don’t Work Hard Move to Cleveland” ABOVE THE LAW (February 12, 2015). University of Virginia, “Faculty History” accessed February 13, 2016 available at http://libguides.law.virginia.edu/faculty/scalia.

[8] Justice Antonin Scalia, “The Supreme Court Historical Society” accessed February 13, 2016 available at http://www.supremecourthistory.org/history-of-the-court/the-current-court/justice-antonin-scalia/.  Antonin Scalia, “Administrative Conference of the United States” accessed February 13, 2016 available at https://www.acus.gov/contacts/antonin-scalia.  American Bar Association, “Fall Meeting Dinner Honors Office of Legal Counsel” accessed February 13, 2016 available at http://apps.americanbar.org/adminlaw/news/vol23no2/olchist.html.

[9] Christopher Myles, “Justice Antonin Scalia: Consistently Originalist,” SETON HALL LAW (law student scholarship). James Brian Staab, The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (Lanham, Md: Rowman & Littlefield, 2006) 114. U.S. Senate, Executive Privilege – Secrecy in Government: Hearings Before the Subcommittee on Inter-Governmental Relations of the Committee on Government Operations, 94th Congress, 1st Session, 1975 67-128.

[10] Cruzan v. Director of the Missouri Department of Health 497 U.S. 261 (1990). Holloway v. United States 119 S. Ct. 966 (1990) (Scalia J. Dissenting). National Endowment for the Arts v. Finley 524 U.S. 569 (1998) (Scalia J. Concurring). Bayerische Motoren Werke of North America Incorporated v. Gore 517 U.S. 559 (1996) (Scalia J. Dissenting).  Mistretta v, United States 488 U.S. 316 (1988) (Scalia J. Dissenting). Synar v. United States, F. Supp. 1374; (D.C. 1986).

[11] Robert A. Katzmann, Judging Statutes (New York: Oxford University Press, 2014), 11.

[12] Antonin Scalia and Amy Gutmann, A Matter of Interpretation Federal Courts and the Law: an Essay (Princeton, N.J.: Princeton University Press, 1997) 3-49.

[13] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson/West, 2012) 341-411.

[14] James Madison, Letters as Helvetius, August 24, 1787-September 14, 1787. William Blackstone, Commentaries on the Laws of England. Book the First. By William Blackstone, Esq. Vinerian Professor of Law, and Solicitor General to Her Majesty (Dublin: Printed for John Exshaw, Henry Saunders, Samuel Watson, and James Williams, 1766) 59.

[15] Compare Colegrove v. Green, 328 U.S. 549 (1946) with Vieth v. Jubelirer, 541 U.S. 267 (2004). Compare Baker v. Carr, 369 U.S. 186 (1962) (Harlan J. Dissenting) with R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Compare United States v. Lopez, 514 U.S. 549 (1995) with Gonzales v. Raich, 545 U.S. 1 (2005). Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (Burger C.J. Concurring) with Obergefell v. Hodges, 576 U.S. ___(2005) (Scalia J. Dissenting).   

[16] Notes of the Federal Convention, in The Avalon Project: Documents in Law, History, and Diplomacy available at  http://avalon.law.yale.edu/subject_menus/debcont.asp. Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: Published for the Omohundro Institute of Early American History and Culture, Williamsburg, Virginia, by the University of North Carolina Press, 1999) 30-31.

[17] Brutus No. 2, in The Founders’ constitution available at http://press-pubs.uchicago.edu/founders/documents/v1ch14s26.html  

[18] Publius, Federalist No. 84: Certain General and Miscellaneous Objections to the Constitution Considered and Answered, in The Avalon Project: Documents in Law, History, and Diplomacy available at http://avalon.law.yale.edu/18th_century/fed84.asp. Thomas Jefferson, Opinion on the Constitutionality of a National Bank : 1791, in The Avalon Project: Documents in Law, History, and Diplomacy available at http://avalon.law.yale.edu/18th_century/bank-tj.asp.

[19] David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (Stanford, Calif: Stanford University Press, 2002) 3.

[20] Keith E. Whittington, “The New Originalism,” 2 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY 599-614 (2004). Antonin Scalia, “The Lesser of Two Evils,” UNIVERSITY OF CINCINNATI LAW REVIEW (1989).

[21] 560 U.S. 126 (2010).

[22] U.S. Const. Art. I § 8.

[23] 488 U.S. 361 (1989). Compare  Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  

[24] Frank Easterbrook, “Antitrust and the Economics of Federalism,” 26 JOURNAL OF LAW AND ECONOMICS 33-35 (1983). New State Ice. Co. v. Liebmann 285 U.S. 262  (1932)(Brandeis J. Dissenting).  

[25] 514 U.S. 779 (1995). James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” (Boston: Little, Brown, and Company, 1893).

[26] Benjamin Constant, De la liberte des Anciens: Discours pronounce al Athenee royal de Paris en 1819, at 2. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: A.A. Knopf, 1996). Gordon S. Wood The Creation of the American Republic, 1776-1787 (Chapel Hill: Published for the Institute of Early American History and Culture at Williamsburg, Va., by the University of North Carolina Press, 1969). Hereafter referred to as Wood. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass: Belknap Press of Harvard University Press, 1967). Hereafter referred to as Bailyn. Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005).

[27] 17 U.S. 316 (1819).

[28] Ibid.

[29] Lawrence B. Solum, “The Interpretation-Construction Distinction,” CONSTITUTIONAL COMMENTARY 27 (Fall 2010), 95-118.

[30] Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, Mass: Harvard University Press, 1999).

[31] 524 U.S. 417 (1998).

[32] Cargo of the Brig Aurora v. United States, 11 U.S. 382 (1813). Field v. Clark, 143 U.S. 649 (1892). Bill Heniff Jr. et al., “Introduction to the Federal Budget Process,” CRS Report for Congress 98-721.

[33] 542 U.S. 507 (2004).

[34] 542 U.S. 466 (2004). 553 U.S. 723 (2008).

[35] Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s Moral Reading of the Constitution, 65 Fordham L. Rev. 1269 (1997).  

[36] Kathleen M. Sullivan and Noah Feldman, Constitutional Law (2013) 34.

[37] Cass Sunstien, “What’s Standing After Lujan? Of Citizen Suits, Injuries, and Article III,” 91 MICHIGAN LAW REVIEW 163 (1992).

[38] 504 U.S. 555 (1992).

[39] William L. Felstiner, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming: A Critique on the Model of Legal Protection,” 15 LAW AND SOCIETY REVIEW 631 (1981). Marc Galanter, “Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review Part One (Autumn, 1974), pp. 95-160. Allan F. Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (New York: Plenum Press, 1988) 61-220.

[40] See generally, Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, Mass: Harvard University Press, 1986). For a more blunt statement, see Karl Marx, Friedrich Engels, Jeffrey C. Isaac, and Steven Lukes, The Communist Manifesto (New Haven: Yale University Press, 2012).

[41] Bailyn, 349-351.

[42] Wood, 1-125. Magna Charta of 1215, in The Avalon Project: Documents in Law, History, and Diplomacy available at  http://avalon.law.yale.edu/medieval/magframe.asp. English Bill of Rights of 1689, in The Avalon Project: Documents in Law, History, and Diplomacy available at http://avalon.law.yale.edu/17th_century/england.asp.

[43] Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998) 260.

[44] 7 U.S. 448 (1806).

[45] James Madison, Speech to the United State House of Representatives on June 8, 1789 in The Founders’ constitution available at http://press-pubs.uchicago.edu/founders/documents/v1ch14s50.html.

[46] Barron v. Baltimore, 32 U.S. 243 (1833). Fox v. Ohio 46 U.S. 410 (1847). Withers v. Buckley 61 U.S. 84 (1858).

[47] U.S. Const. amend. XIV. United States v. Carolene Products Company, 304 U.S. 144 (1938). See Everson v. Board of Education 330 U.S. 1 (1947), Cantwell v. Connecticut 310 U.S. 296 (1940), Near v.**Minnesota 283 U.S. 697 (1931), De Jonge v. Oregon 299 U.S. 353 (1937), Edwards v. South Carolina 372 U.S. 229 (1963), McDonald v. City of Chicago 561 U.S. 742 (2010), Mapp v. Ohio, 367 U.S. 643 (1961), Aguilar v. Texas, 378 U.S. 108 (1964), Ker v. California, 374 U.S. 23 (1963), Benton v. Maryland, 395 U.S. 784 (1969), Griffin v.**California, 380 U.S. 609 (1965), Malloy v. Hogan, 378 U.S. 1 (1964), Miranda v. Arizona, 348 U.S. 436 (1966), Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), Klopfer v. North Carolina, 386 U.S. 213 (1967), In re Oliver, 333 U.S. 257 (1948), Duncan v. Louisiana, 391 U.S. 145 (1968), Pointer v.**Texas, 380 U.S. 400 (1965), Washington v. Texas, 388 U.S. 14 (1967), Powell v. Alabama 287 U.S. 45 (1932), Gideon v. Wainwright, 372 U.S. 335 (1963), Argersinger v. Hamlin, 407 U.S. 25 (1972), Robinson v. California, 370 U.S. 660 (1962).

[48] John Stuart Mill, and Elizabeth Rapaport, On Liberty (Indianapolis: Hackett Pub. Co, 1978). New York Times Co. v. Sullivan 376 U.S. 254 (1964). Vincent Blasi, “The Checking Value in First Amendment Theory,” 1977 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 521. Whitney v. California, 274 U.S. 357 (1927) (Brandies J. concurring).

[49] Gerald Gunther, “Learned Hand and the Origins of Modern First Amendment Doctrine,” 27 STANFORD LAW REVIEW 719 (1975). Kent Greenawalt, “Insults and Epithets, Are They Protected Speech?” 42 RUTGERS LAW REVIEW 287 (1990). Cass Sunstein, “Words, Conduct, Caste,” 60 UNIVERSITY OF CHICAGO LAW REVIEW 795 (1993).

[50] Brandenburg v. Ohio, 395 U.S. 444 (1969). Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Miller v. California, 413 U.S. 15 (1973).

[51] 315 U.S. 572 (1942).

[52] R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

[53] Daniel Farber, “The Categorical Approach to Protecting Speech in American Constitutional Law,” 84 INDIANA LAW JOUNRAL 917 (2009).

[54] Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011).

[55] See generally, Stephen B. Wood, Constitutional Politics in the Progressive Era: Child Labor and the Law (Chicago: University of Chicago Press, 1968).

[56] Jerome A. Barron, “Access to the Press – A New First Amendment Right,” 80 HARVARD LAW REVIEW 1641 (1967). Metro Broadcasting Incorporated v. Federal Communications Commission, 497 U.S. 547 (1990).

[57] Edwin Baker, “Scope of the First Amendment Freedom of Speech,” 25 UCLA LAW REVIEW 964 (1978).

[58] Robert Paul Wolff, Barrington Moore, and Herbert Marcuse, A Critique of Pure Tolerance (Boston: Beacon Press, 1969) 95.

[59] Cass Sunstein, “Free Speech Now,” UNIVERSITY OF CHICAGO LAW REVIEW 255 (1992).  

[60] Supra note 20.

[61] Robert Bork, “Neutral Principles and Some First Amendment Problems,” 47 INDIANA LAW JOURNAL 1 (1971).  

[62] Edwin Meese III, “Speech Before the D. C. Chapter of the Federalist Society Lawyers Division,” (1985). Supra note 61.

[63] Supra note 12. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty. Princeton: Princeton University Press, 2004) 91-120.

[64] Paul Brest, “The Misconceived Quest for Original Understanding,” 60 BOSTON UNIVERSITY LAW REVIEW 204 (1980).

[65] Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990) 163.

[66] Frank B. Cross, The Failed Promise of Originalism (Stanford, California: Stanford Law Books, an imprint of Stanford University Press, 2013) 113-114.

[67] Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, Mass: Harvard University Press, 1999). Edwin Meese III, “Speech Before the D. C. Chapter of the Federalist Society Lawyers Division,” (1985).

[68] William H. Rehnquist, “The Notion of a Living Constitution,” 54 TEXAS LAW REVIEW 695 (1976).  

[69] U.S. Const. Art. II § 1 cl. 1.

[70] Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911). John F. Manning, “Textualism and the Role of The Federalist in Constitutional Adjudication,” 66 GEORGE WASHINGTON LAW REVIEW 1337 (1998).

[71] James Madison and Jonathan Elliot, The Debates in the several state conventions on the adoption of the Federal Constitution as recommended by the general convention at Philadelphia in 1787 : together with the journal of the federal convention, Luther Martin’s letter, Yates’s minutes, Congressional opinions, Virginia and Kentucky resolutions of ’98-’99, and other illustrations of the Constitution (Washington: Printed for the editor, 1836).

[72] Alexander Hamilton, James Madison, and John Jay, The Federalist (Cambridge, U.K.: Cambridge University Press, 2003). James Wilson, The Works of James Wilson (Cambridge: Belknap Press of Harvard University Press, 1967). Herbert J. Storing and Murray Dry, The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981).

[73] For example, Madison’s views on equal state representation in the Senate changed drastically from the Philadelphia Convention to state ratification. Moreover, private letters he wrote to Thomas Jefferson indicate that his shift in opinion was not as sincere as he portrayed it to be in The Federalist.  

[74] Max Radin, Statutory Interpretation, 43 HARVARD LAW REVIEW 863-870. In Abner J. Mikva and Eric Lane, Legislative Process (New York: Aspen, 2009) 106.  Jack N. Rakove, Original Meanings: Politics and Ideas In the Making of the Constitution (New York: A.A. Knopf, 1996) 317, 329. Christopher L. Eisgruber, Constitutional Self-Government (Cambridge, Mass.: Harvard University Press, 2001) 25-46.    

[75] Compare Obergefell v. Hodges, 576 U.S. ___ (2015) (Kennedy J.) with (Thomas J. dissenting).

[76] District of Columbia v. Heller, 554 U.S. 570 (2008). McDonald v. City of Chicago, 561 U.S. 742 (2010).

[77] Saul Cornell, “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” 69 OHIO STATE LAW JOURNAL 625 (2008).

[78] Brief of Amici Curiae Jack N. Rakove, Saul Cornell, David Konig, Walliam J. Novak, Louis Schwoerer et al.

[79] Reva Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 HARVARD LAW REVIEW 191 (2008).   

[80] Aristotle, W. D. Ross, and J. O. Urmson. The Nicomachean Ethics (Oxford (Oxfordshire): Oxford University Press, 1980) 112-117, 1131a-1131b. Andrews v. Law Society of British Columbia 1 S.C.R. 143 (1989).

[81] Cass R Sunstein, The Partial Constitution (Cambridge, Mass: Harvard University Press, 1993) 134-135.

[82] Melissa L. Saunders, “Equal Protection, Class Legislation, and Colorblindness,” 96 MICHIGAN LAW REVIEW 245 (1997).

[83] William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass: Harvard University Press, 1988) 48.

[84] A strict positivist who did not believe in jus cogens norms or uncodified customary international law might view the Nuremburg trials as an exception to this rule.

[85] Edward S. Corwin, “The Higher Law Background of American Constitutional Law” 42 HARVARD LAW REVIEW 149 (1928).

[86] U.S. Const. Amend IX.

[87] Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).

[88] United States v. Virginia 518 U.S. 515 (1996).

[89] Romer v. Evans, 517 U.S. 620 (1996).

[90] Vieth v. Jubelirer, 541 U.S. 267 (2004).

[91] Bush v. Gore 531 U.S. 98 (2000).   

[92] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).