Justice Antonin Scalia was an “originalist” committed to interpreting the Constitution in the way it would have been understood at the time it was adopted. He was also a conservative who was, as any of us are regardless of our politics, committed to particular outcomes that he hoped the law would support.
Sometimes that originalism would conflict with conservatism. As a clerk for Scalia in the early 1990s, and the only liberal clerk in the chamber, I watched him struggle with that conflict. In every case that I knew in my time as a clerk, however reluctantly, in the end Scalia followed originalism, whether the result was conservative or not.
In one case, for example, the question was how long someone arrested without a warrant could be held before presented to a judge. The presumptive conservative answer was quite long. But the question Scalia asked me was, “how long would he have been held at the framing?” And after reading scores of case reports from the time around the founding, my answer to him was not what he wanted to hear: he should be presented to a judge as soon as possible, even if that meant waking the judge up. “Ok, that’s our position,” Scalia told me, maybe reluctantly. “I don’t believe in an originalism of convenience.”
These acts of integrity were incredibly important to me in my becoming a lawyer. I’m not convinced he always chose originalism over conservatism. Indeed, the last time I saw him over lunch, I complained to him that he had ruined me as a constitutional lawyer, because I was constantly predicting he’d choose originalism over conservatism, yet too often, I said, when the decision came down, I felt like Linus waiting for the Great Pumpkin. Scalia laughed his extraordinary life-loving-laugh, and told me I obviously hadn’t read the cases carefully enough. And maybe, in at least some of those cases of disappointment, I hadn’t.
But whether perfectly or not, what was most striking to me was to watch someone of great power constrain his power, not for favors or public approval, but because he thought it right. As a law clerk, you quickly see the law is a weak constraint. Originalism for Scalia was justified because of how he thought it would constrain judges. I’m sure every clerk recalls a time when whether convenient or not, originalism constrained him.
Of course originalism doesn’t decide everything. And where it doesn’t, there’s no reason a politically appointed originalist judge shouldn’t follow his or her own politics. But we need a clearer way to call out inconsistent originalism, or as Scalia called it, an “originalism of convenience.”
For example, I’ve not yet seen the argument for how an originalist could believe Ted Cruz qualified to be president. For the framers, someone was a “natural born citizen” if born in America, or possibly if born outside America to an American father. Perhaps an originalist could insist that the equality principle of the 14th Amendment now forbids distinguishing “father” and “mother.” That’s a possible argument for the eligibility of Cruz, who was born in Calgary, Canada to an American mother and a Cuban father. But it is not, at least for an originalist, an obvious argument. The question is harder than the Cruz-styled originalists suggest, and we need a more reliable way to signal this sort of inconsistency.
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Or consider another example: Did “he shall nominate … Judges of the Supreme Court” mean “except in the last year of his term” at the founding? Did “by and with the Advice and Consent of the Senate” also include that caveat? And if so, was the Senate acting unconstitutionally when it confirmed Justice Kennedy in February 3, 1988, by a 97-0 vote?
We don’t expect the same consistency from politicians as we do from judges. But when they invoke the Constitution, I think we should. Regardless of one’s theory of interpreting the Constitution, we should have an easier way to call out results of convenience. We’re all guilty of it sometimes. Some are less guilty than others.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership, Harvard Law School. His latest book is Republic, Lost: Version 2.0.Follow him on Twitter @lessig.
