Margaret Talbot offers a long, critical, insightful and somewhat affectionate profile of Supreme Court Justice Antonin Scalia in this week's New Yorker. The full profile, annoyingly, is not online, although they have posted a Q&A with Talbot that serves as a kind of Cliff Notes for the piece.
The more I read of Talbot's description of Scalia's approach to the Constitution, the more I began to have a sense of deja vu. I grew up among the fundamentalists. I've encountered this before.
Here's Talbot describing Scalia's interpretive philosophy of "originalism":
Originalists, [Scalia] went on, feel that judges should adhere to the precise words of the Constitution, and believe that the meaning of those words was locked into place at the time they were written. …
In a 1996 speech, Scalia said, "I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. He approaches statutes the same way. He never asks what the legislature meant; there is only the text, and Scalia is certainly no postmodern relativist. "Words do have a limited range of meaning, and no interpretation that goes beyond that is reasonable," he has said. …
He is likely to say, when asked … how one could know precisely what a text meant 200 years ago, that it is just "not that hard."
Or, as Talbot summarizes in the Q&A:
That means that he reads the plain text of the Constitution and sticks to what he believes its meaning to have been at the time it was written.
For Scalia, as an originalist, the Constitution means what it says and it says what it means. That's a phrase borrowed from evangelical preachers, of course, who say the same thing about their reading of the "plain text" of the Bible.
Mark Noll describes this evangelical approach as "naive Baconianism." Here's Noll in The Scandal of the Evangelical Mind (the one book you should read if you want to understand American evangelical Christians):
Evangelicals make much of their ability to read the Bible in a "simple," "literal" or "natural" fashion — that is, in a Baconian way. In actual fact, evangelical hermeneutics, as illustrated in creationism, is dictated by very specific assumptions that dominated Western intellectual life from roughly 1650 to 1850 (and in North America for a few decades more). Before and after that time, many Christians and other thinkers have recognized that no observations are "simple" and no texts yield to uncritically "literal" readings. …
When evangelicals rely on a naive Baconianism, they align themselves with the worst features of the naive positivism that lingers among some of those who worship at the shrine of modern science. Thus, under the illusion of fostering a Baconian approach to Scripture, creationists seek to convince their audience that they are merely contemplating simple conclusions from the Bible, when they are really contemplating conclusions from the Bible shaped by their preunderstandings of how the Bible should be read.
There are, in other words, two problems with evangelicals' alleged "simple," "common-sense" approach to the text. First, such an approach doesn't work. Second, this isn't really what they're doing anyway. The supposedly literal approach begins with certain presuppositions (cultural, personal, psychological, economic) and then finds these very same presuppositions as obvious and self-evident in the plain meaning of the text. Thus the sacred word becomes a mirror and our exegesis begins to resemble Stuart Smalley's daily affirmations.
Scalia's originalism seems slightly less naive than evangelicals' literalism, if only because he at least seems to acknowledge that he has presuppositions. His overweening confidence that these presuppositions never influence his strict originalist interpretations, however, may be even more naive. Here's Talbot again from the Q&A:
… Socially he’s pretty conservative — anti-abortion, pro-death penalty, anti-affirmative action, and so on. And that is how he votes on those issues on the Court. He would emphasize, though, that he does not reach these conclusions because they are the ones he’d prefer as a matter of policy — what he would prefer as a policy matter is, he would say, entirely irrelevant — but because, after reading the words of the Constitution or of a statute, that was the conclusion he had to reach.
How felicitous for Scalia that his personal preferences are so consistently identical with what a totally objective, originalist reading of the Constitution provides. How convenient that the originalist reading just happens to comport so exactly with what he had hoped to find. Except, of course, when it doesn't:
Cases in which Scalia believes that elite judges or professors are trying to dismantle the moral positions of "the people" bring out a particular vituperativeness, however, and leave the unavoidable impression that he is speaking not only for originalism but also for his own selective notion of the vox populi. In his dissent in Lawrence v. Texas, the sodomy case, he wrote, "Today's opinion is the product of a Court which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."
That sentence relies on the authority of at least six extra-textual assumptions, presuppositions or conclusions without engaging the text at all. Make of it whatever you will, it's not an "originalist" argument.
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