Quote o’ the Day (courtesy of Justice Scalia)
This comes from a recent “conversation” between Justice Scalia and Justice Breyer hosted by the University of Arizona. The Justices were discussing the Constitutional interpretation; specifically the merits of originalism v. values-based interpretation. Justice Scalia delivered this line after Justice Breyer touted Brown v. Board of Education as the coup de grace of originalism:
“Hitler developed a wonderful automobile,” [Scalia] went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.”
H/T to Mirror of Justice
I saw a large chunk of this event with Justices Scalia and Breyer on C-SPAN, and I thought it was very interesting. It’s very rare that something on C-SPAN keeps me riveted for half an hour or more, but this did.
I don’t get this.
First, because we generally do judge regimes primarily by their results and not by their ideological underpinnings. And in Hitler’s case, we certainly do. So, the primary objection to Hitler isn’t that he had an odious ideology it’s that he started a World War and killed 6 million Jews. Designing a great car doesn’t outweigh that.
Second, the result in Brown — that the Constitution does not allow the government to enforce a racial caste system — is not a frivolity like a “wonderful automobile.” Like it or not, many people see it essential to America’s identity, as an example of America living up to its core values and as central to America’s ability to succeed morally, culturally and economically in a global economy. If originalism would not have led to that result that is a serious strike against it. Do you disagree?
tulip –
First off, I don’t really think you can tease apart Hitler’s ideology and his killing of 6 million Jews… They link up in my mind.
Secondly, Justice Scalia is making a broader point: in the judicial realm, the process (i.e. the test used) is more important than the result in a given case. From here you just play connect the dots. With the Hitler anecdote he is saying that because Nazi fascism may have produced a superior product does not mean it is the better form of government. By analogy, although contemporary values-based Constitutional interpretation produced a single good result in Brown v. Board, this does not indicate that a trendy Constitution is ultimately the better method of interpretation.
Even a blind hog finds an acorn every now and then.
But fascism did not produce a superior product. That is my point. Nazism ruined Germany and much of Europe and killed a bunch of people in the process.
And the question isn’t does Breyer’s method of interpretation produce the result in Brown, but does Scalia’s? And if it doesn’t, that counts against it. If originalism permits a racial caste system then many people, correctly in my view, would want no part of it.
In the analogy, the “product” of Nazism was the automobile; the “product” of fluid, contemporary values-based Constitution was “Brown v. Board” – both good things, but gotten about wrongly.
Scalia (probably wisely) did not state outright how he would vote on Brown as an originalist.
It is often said that hard cases made bad law. I think what this boils down to is the role of the Supreme Court – a dispassionate referee or an instrument of social change. Mr. Justice Scalia would subscribe to the latter (as would I) which means that the Court’s decisions should not be based on the social implications of the ruling, but on sound Constitutional interpretation. Socially pervese results will enevitably result on occasion but the legislature is the proper engine for social change reflecting contemporary values and not the courts.
On a local scale, this proper role of the court is exemplified by a trial judge making a ruling in favor of a defendant who is clearly guilty of the crime. We don’t fault the judge because it is not the judge’s role to put the guy in jail even though his going to jail would be preferable for society than him going free.
An originalist approach to constitutional interpretation could easily, and correctly, have reached the same result in Brown. As Bork pointed out in The Tempting of America:
“Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. THE PURPOSE THAT BROUGHT THE FOURTEENTH AMENDMENT INTO BEING WAS EQUALITY BEFORE THE LAW, AND EQUALITY, NOT SEPARATION, WAS WRITTEN INTO THE LAW.”
Originalism works! Better. Correctly. More dependably.
What Joel said. Also, see Judge McConnell’s law review article on this very issue.
Scalia in a nutshell, in his own words:
“I do believe…that you give the text the meaning it had when it was adopted.
This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”
And more delicious and scathing Scalia goodness at the URL below. Learn it. Live it.
http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm
What Joel said.
I also think that the post mistakenly attributes a view to Justice Scalia that Justice Scalia does not have. He does NOT say that Brown v. Board of Education was wrongly decided.