On last week’s episode of Culture Wars Radio, Dan and I did a long discussion on the varieties of originalism and I talked about how the late Justice Scalia famously called himself a “faint-hearted originalist” in a 1989 article because there were some situations where he would not follow originalism to its obvious conclusion because he found the outcome morally repugnant. He specifically mentioned the 8th Amendment ban on “cruel and unusual punishments.”
He talked about the fact that, at the time of the Constitution, the use of stocks and public flogging were considered routine and normal punishments for crime. Originalism would thus conclude that the founders did not view them as a cruel and unusual punishment and the 8th Amendment thus would not ban them. But, he said, he finds that so morally repugnant that in such a case, he would jettison his originalism and overturn such laws. What I did not know until today was that he later repudiated that position. I discovered it by accident when looking something up that related to an article my friend Andrew Seidel wrote about originalism here on Patheos. He did this in a 2013 interview with New York magazine:
You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.
So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
But even with that change of position, he was never as committed to originalism as Justice Thomas was, and is. But the problem with conservative originalism, or one of the major ones, is that it forces its adherents to pretend to support precedents that their originalism would clearly say were wrong but are now so universally accepted that it would be politically suicidal to say so. The obvious examples are Brown v Board of Education and Loving v Virginia. The latter case, in particular, cannot possibly be valid on conservative originalist grounds. It simply has to be wrong if one applies their version of originalism.
But no judge, or even legal scholar, could say so today without becoming a pariah. So they tie themselves into all kinds of logical knots trying to pretend that they can be originalists and still reach the same conclusion the court did in Loving. The attempts are so bad that they can only provoke laughter.