It was aggravating enough when Justice Breyer, appearing on Good Morning America two weeks ago, made comments that many took to mean that Koran burning is equivalent to “shouting fire in a crowded theater.” After all, the Supreme Court doesn’t officially convene until Monday, but the scandals have already begun.
Only a few days later, Justice Antonin Scalia had to steal the spotlight and make another controversial claim, one that requires a response. As the San Francisco Chronicle reported two weeks ago, Scalia asserted to a law school crowd in San Francisco that sex based discrimination is not prohibited by the Constitution. Scalia based this claim, as he frequently does with his official opinions in the court, on his originalist interpretation of the Constitution. But Scalia’s originalism is ultimately disingenuous, marred by the very interpretation bias it attempts to eliminate.
The problem is not necessarily that the theory is a bad one. A serious argument can be made for interpreting all parts of the Constitution and its amendments in the context in which they were written. A true originalist would argue that if the original authors had not intended a certain passage to be read a certain way, than it can’t be read that way at all. After all, originalists claim, one can easily take into account societal changes through the legislative branch by proposing amendments, but one cannot simply add their own biases to a Constitutional reading.
The real issue is the insincerity with which Scalia and the other originalists support their theory. Consider this: the 14th Amendment was written after the Civil War with the particular goal of helping freed slaves. As such, originalists can rightly claim that according to their reading, it cannot be applied to protecting against sexual orientation or broader gender discrimination. However, most of the originalists, Justices Scalia and Thomas included, have written several key opinions, in which they contend that corporations are in fact protected under the 14th Amendment. For example, the recent Citizens United v. Federal Election Commission decision concluded that major portions of campaign finance law were unconstitutional because they violated corporations’ freedom of speech, a right that is applied through the 14th Amendment.
Were protections for corporations ever a consideration for the writers of the 14th Amendment? Obviously, no, but Scalia continues to argue that his interpretations of the Constitution only look at the actual text and intent of the authors. David Gans of the Huffington Post remarked in an editorial lambasting Scalia’s recent comments that Scalia “tends to apply [his] approach selectively, or not at all, when it comes to the Fourteenth Amendment.”
And yet Scalia manages to get away with it term after term. It seems that the public is willing to accept that he is, in fact, a genuine originalist when his record shows that he is anything but. Hopefully, Scalia’s arbitrary application of his own Constitutional theory will be noted more in the future, and statements such as those he made in San Francisco will be regarded as those of just another justice stirring up controversy before the term begins.
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