This commentary originally appeared in the Washington Examiner on March 9, 2016.
Justice Antonin Scalia's more important legacy may be objectivity more so than conservatism. Scalia advanced broad acceptance of an objective method of interpretation without inherently favoring liberal or conservative policies. Originalism relies on the meaning of words written by others long ago instead of modern political fashions. Its objectivity ensures that law is more distinct from policy or politics.
Perhaps the best example of Scalia's influence on jurisprudence is the dissent in District of Columbia v. Heller — Scalia authored the majority opinion. The Heller dissent is an in-depth historical analysis of the Second Amendment's text and history spanning 46 pages. It breaks down the amendment's text word-by-word, clause-by-clause, and interprets it in light of period documents, including the Declaration of Rights of six states and militia statutes of several others. It engages with the English Bill of Rights, the Federalist, and Blackstone's Commentaries. It criticizes the majority's misreading of the Second Amendment's preamble, concluding that the Court is merely reflecting its own policy preferences rather than interpreting the Constitution. It was written by Justice Stevens, the "liberal lion."
Stevens was dissenting from Scalia's majority opinion. The majority held that the Second Amendment protected an individual's right to keep handguns in the home for self-defense. Scalia too arrived at his position through detailed historical and textual analysis, but that is not particularly remarkable. He had been practicing that approach for decades.
The dissent shows how far constitutional interpretation has moved in Justice Scalia's direction. Stevens, a liberal stalwart, chose to dissent in originalist terms rather than focusing on the liberal policies behind gun regulation or any version of living constitutionalism.
To be clear, Stevens's method is not Scalia's. But Scalia would not consider it argle-bargle or jiggery pokery either. In Heller, Stevens engages in a version of originalist interpretation that seeks to find the original intent of a document's framers. Scalia instead looks for the public's understanding of the document's meaning rather than the framers'. But both methods are originalist in the sense that they see the law as fixed at the time of passage. Both see legal interpretation as an objective exercise to find someone else's meaning, not the judge's. They merely disagree on whose interpretation controls — the framers' or the public's.
Stevens's (at least partial) embrace of originalist methods is no longer unusual on the left. Leading liberal academics such as Jack Balkin and Akhil Amar have fully embraced versions of originalism and used them to justify liberal policies as well as conservative ones. On the right, originalism seems almost taken for granted.
The interpretation of law will never be fully removed from politics, even if everyone agrees to use originalist methods. The Helleropinions make that clear. It is probably not a coincidence that the justices who are associated with a movement broadly in favor of gun control construed the right differently than those associated with the other side. Originalism will not end the human tendency to reach the conclusions we favor. But its objectivity mitigates the tendency.
Recall Scalia's wish for a stamp that read "STUPID BUT CONSTITUTIONAL" or his finding constitutional rights to engage in practices he abhorred, such as flag burning and cross burning. An objective method of interpretation results in legal conclusions that do not match one's policy conclusions. "The judge who always likes the results he reaches is a bad judge."
Originalism's objectivity is especially important when safeguarding individual rights from majoritarian governments. In a democracy, rights are only threatened once they become unpopular. So the threat will always be from modern values. Any method of interpretation that "evolves with the times" cannot defend rights because it seeks to define them by the same values that threaten them. Or in Scalia's words, "A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all."
Joel Stonedale is an attorney with the Center for the American Future at the Texas Public Policy Foundation. is an attorney with the Center for the American Future at the Texas Public Policy Foundation.