Scalia Maligned

Richard Epstein*

Richard Epstein

Richard Epstein

The death of Antonin Scalia has set up a nasty battle over who shall occupy his vacant seat on the Supreme Court. The battle does not just involve the endless political skirmishes now taking place between the White House and the Senate. It also extends to the larger philosophical debate over the constitutional theory of originalism, with which Justice Scalia was so closely associated. Few of the attacks on originalism and Scalia have been as tasteless and ignorant as “Looking Back,” the broadside that the journalist Jeffrey Toobin recently published in The New Yorker.

It is evident that Toobin is out for blood from his opening salvo: “Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.” This gratuitous slur on Scalia’s integrity is odd. One of Scalia’s most prophetic warnings was that the defenders of the “living Constitution” seek to remove key issues, such as gay marriage, from the ordinary political process, and in so doing necessarily politicize the Court. In Scalia’s view, once that happens, people have to be ever more concerned about the political inclinations of the justices, because fidelity to text will not anchor them to positions that are contrary to their own philosophical predilections. The point is one that classical liberals like myself have to take seriously. For example, no matter how much we think that protective tariffs are a source of economic stagnation, it is beyond dispute that the founders gave Congress the power to regulate foreign commerce in order to allow it to erect tariff walls around the United States.

Living constitutionalists of all stripes always think that they are clever enough to defeat the central tenet of originalism—namely, that in dealing with the text of the Constitution, its proper interpretation depends on the public meaning of terms at the time of their adoption. Toobin grotesquely vulgarizes originalism as “a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century.” Wrong on two counts. First, conceptually, Scalia did not think that the private thoughts of individual framers counted for much, but placed his weight on careful studies of the shared public meaning of key terms. Second, no originalist offers a normative defense of slavery. But it is surely necessary to recognize that many of the great political leaders of the time—George Washington, Thomas Jefferson, and James Madison for starters—were slave owners who separated themselves from that dreadful institution on other issues. Should we regard the entire corpus of American writings in that period as rubbish because of slavery?

We know that Toobin could not take that dubious position because he proudly points to the great Chief Justice John Marshall as one who “always looked forward” as opposed to a backward-looking justice like Scalia. Toobin falsely argues that Marshall “read the new Constitution to allow for a vibrant and progressive federal government.”

So what is wrong with this picture? John Marshall was a slave owner for the entire time that he sat on the Supreme Court. Yet Toobin is not bothered: Marshall does not fall into the camp of “bewigged worthies,” or those obsolete persons who thought that they could divine the intentions of the Framers. The point is deeply ironic because some of Marshall’s supposed “progressive decisions” were often drafted with one eye on the need to preserve slavery in the antebellum period. The most notable case of this sort was Gibbons v. Ogden, decided in 1824, in which Marshall took issue with the great Chancellor Kent on whether New York could prohibit the movement of steam ships in New York Harbor while on an interstate journey from Elizabethtown, New Jersey. New York’s objective was to protect Aaron Ogden’s long-term exclusive license to navigate New York waters using steam power granted by the New York state legislature, which Ogden had taken by assignment from Robert Fulton.

In dealing with this issue, Marshall gave what was for the time a bold reading of the Commerce Clause, but one that was consistent with its language, by allowing that navigation into the interior of a state was part of the Congressional mandate. But by the same token, he knew that any broader reading of the commerce power could confer on Congress the power to regulate or abolish slavery within the several states, in clear violation of the basic (and regrettable) political accommodation of 1787. Hence he held that the “purely interior commerce” within any state was beyond the power of Congress to regulate. It went without saying, therefore, that Congress could not regulate manufacture, agriculture, and mining within the states—which was something that the anti-slave forces in the North well understood. There may have been ambiguity in the Constitution over the exact scope of an interstate journey, or, indeed, over the question of whether the shipment of passengers, as well as goods, fell within the scope of the commerce power.

Yet it is a tribute to originalism that before the major progressive revolution of 1937, no one thought that the commerce power extended to the various activities that took place within the state. Disputes always arise about the accepted public meaning of any particular term in the Constitution, with hard cases on both sides of the line. But the clear cases dominate. In the pre-1937 period, for example, it was widely understood that the fledgling Food and Drug Administration could regulate the manufacture of new drugs in the territories, but not within the states, and that Congress could not control the use of intoxicating liquor within the states, even though it could limit its regulation across state lines.

It is just absurd to paint Chief Justice Marshall as “a progressive,” as if he would have ever countenanced decisions like Wickard v. Filburn, which in 1942 solemnly declared that feeding wheat to one’s own cows was an action that constituted interstate commerce. Nor does it make the slightest sense for Toobin to claim that Louis Brandeis was a great justice because he understood “the need for the government to regulate an industrializing problem.” The classical liberal justices who pioneered the sophisticated law of rate regulation in the late nineteenth century before Brandeis joined the court understood that point as well. The clear question is what form of regulation is appropriate, and the unforgivable sin of the progressives, Brandeis sometimes included, is that they succumbed to thinking that sensible regulation allowed the government to fortify government monopolies in business, labor, and agriculture, even though state-created monopolies are antithetical to the purposes of a free society. A more inaccurate account of constitutional history than Toobin’s is hard to imagine.

As against the mushy modern rules of constitutional interpretation, the great virtue of originalism is that it finds limits in the text beyond which the most adventurous court should never go. But it hardly follows that every decision that Justice Scalia penned was justified on originalist grounds, or that getting textual meaning right is the only challenge that one faces in constitutional interpretation.

In chiding Justice Scalia, Toobin takes potshots at one of the most famous of Scalia’s originalist opinions, Heller v. District of Columbiain which he gives an originalist interpretation of the Second Amendment that allows individuals to keep and bear arms in the District of Columbia, subject to reasonable police power regulations. The text of that Amendment reads: “A well regulated militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In my view, Toobin wins the small battle that Heller is wrongly decided, but he only wins on a close originalist reading, which is what Justice John Paul Stevens supplied in his powerful dissent. One of the first rules of constitutional interpretation is never to excise language from a text as if it were mere surplus. Always look first for an intelligible reading. Scalia was wrong to read out the initial clause dealing with the well regulated militia because it tied into the explicit grant of divided authority, both federal and state, over the militia found in Article I, Sections 15–17 of the Constitution. The key point was that the federal government could not regulate any use of arms inside the state to preserve its autonomy. But that objection did not apply to the District of Columbia, which has no militia at all, so that the Second Amendment does not apply. Stevens made the right structural argument; Scalia, I believe, did not. But there is nothing about living constitutions and changed circumstances that helps determine the correct result. The chief flaw in alternative theories to originalism is that they often provide no coherent methodology for systematic interpretation of the Constitution.

Indeed, this last point can be made more generally. The insistence that words be given their original public meaning at the time of the founding is, in one sense, less restrictive than might appear to be the case, for many terms like “commerce” or “private property” hold their meanings for long periods of time across different societies. Moreover, the originalist project can only prove viable if it recognizes that any system of interpretation has to deal with the words and phrases that are not in the Constitution as well as those that are. The point here is not new, but goes back as far as Roman times, when general propositions, like “it is wrong to kill or to take the private property of others,” are understood to create only a prima facie case of liability, subject to defenses that are nowhere written in the text.

To persons unpracticed in the art of interpretation, it is too easy to assume that these unwritten exceptions into the doctrine open up the floodgates to endless discretion. But that point is wrong. The terms that are read into contracts, statutes, and constitutions are not ad hoc, but the standard provisions that are always raised in response to an initial command. Yes, thou shalt not kill, but one may kill in self-defense, or in defense of a third party. Yes, one cannot take private property without just compensation, but both a private party and the state are entitled to disarm an assailant or shut down a nuisance. Out of such examples, a consistent account of the police power is developed—and this interpretative approach was one of the central tropes of constitutional law long before progressive thinkers worked their mischief with the constitutional text.

That is just the point. It is wrong to think that originalists have to be inattentive to structure, or must ignore the delicate task of implication. They can’t and don’t. But what the modern progressives have never answered is Scalia’s challenge to their own legitimacy: the modern approaches allow any justice to impose his or her policy preferences on the rest of society. Language is more stubborn than that. There is no way to torture the term commerce to mean manufacture, either in 1787 or today.

In his most famous essay on originalism, “Originalism, The Lesser Evil,” Scalia strikes just the right note by recognizing that even the best theory of constitutional interpretation will run into odd turns and blind alleys. No system of interpretation can rid texts of their internal errors. But it really pays to try to get it right, which is what progressives, in their desperate urge to regulate the economy, ignored. Yet, as I wrote just last week, it is no accident that the highest rate of growth in the United States took place before progressive doctrines were used to overturn the original Constitution. Every day, we all have to live with the consequences of their mistaken vision.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Dream Derailed

 Richard Epstein

Fifty years ago, Martin Luther King Jr. delivered his “I have a dream” speech at the Lincoln Memorial to a crowd of over 200,000 people. The crowd had gathered to protest the dangerous state into which race relations had fallen in the summer of 1963. King’s memorable speech was part of “the March on Washington for Jobs and Freedom,” and its solemn cadences ring as powerfully today they did 50 years ago. No one who heard it could forget its immensely powerful assault on segregation, the demise of which no respectable person—northerner or southerner—mourns today. No one should forget that King’s speech was a major catalyst in moving a still reluctant nation to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Freedom vs. Jobs

The large praise heaped on the speech should not, however, blind us to the difficulty of reconciling the two major goals of the March on Washington. A campaign for both jobs and freedom will ultimately have to choose between them. King did not use the word “jobs” once in his speech. But he did insist that this nation redeem its promissory note to all citizens of “the inalienable rights of life, liberty, and the pursuit of happiness.” And he keenly recognized that freedom and the universality of rights are necessarily paired.

He observed, “Many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom.” From there, he neatly segued to two burning issues of the time: voting and public accommodations, which eventually became Title I and Title II of the Civil Rights Act of 1964 respectively.

But he slips badly when he says, “We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote.” The two problems could not be more distinct. The exclusion from the polls of an individual by virtue of race is a denial of what King rightly names “citizenship rights.”

It is easy to think of a legal remedy that could be introduced against formal prohibitions against the right to vote, just as it is easy to envision remedies to legal barriers to entry into labor markets. Striking them down is a no-brainer because at one stroke the new laws are able to expand opportunities for all citizens and shrink the size of government.

But wanting some particular political agenda to come before a state legislature does not have those simple virtues. There are thousands of agendas from which to choose, and there is no reason to believe that all people of any race or group should unite behind any of them. While it is easy to forge a strong coalition to remove legal barriers to entry in political and economic markets, it is a treacherous business—and one easily derailed—to try to create a single substantive agenda that people of all races and from all walks of life should support.

From Public Accommodations to Employment Relations

When King spoke in 1963, he rightly stressed the removal of formal barriers that stood in the path of the equality of opportunity for all citizens. But executing this program turned out to be more difficult than one suspected.

The first point to note was that in 1963 it was easy to dismantle the barriers to full and equal service in public accommodations, which was done quickly and effectively in the aftermath of the passage of Title II of the Civil Rights Act. It takes little ingenuity to sell train tickets to all customers and to offer them transport on fair and nondiscriminatory terms. Indeed, as I pointed out in last week’s column on “The Butler,” the initial application of Title II was needed to counteract the deadly combination of private violence and state domination that kept these systems of public accommodation effectively closed.

Yet the same strategy cannot work for employment. No one thinks that jobs, like seats on trains, should be awarded on a first-come, first-serve basis at uniform wages. Labor markets, on both the supply and demand sides, are defined by a huge heterogeneity. This variation requires an extensive search process to match the right worker with the right position.

Title VII of the Civil Rights Act consciously imitated Title II, which provided that all people are entitled to ”the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” In turn, Title VII decreed that

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; . . .

Consistent with the universalistic spirit of 1964, Title VII, quite consciously, targets discrimination “against any individual,” and replicates the same color-blind rule in employment that became the gold standard in public accommodation cases. But however noble its intentions, Title VII misfired. At the time of its passage, a strong social consensus condemned “preferential treatment” —later rebranded first as affirmative action and then diversity—of minorities as an impermissible form of reverse discrimination. By embedding that judgment into the Civil Rights Act, the Congress in 1964 tried to freeze its view of race relations on all private employers.

The massive race riots of the mid-1960s quickly convinced most thoughtful supporters of Title VII that its color-blind approach was too slow to counteract the massive levels of social unrest. So the gears started to turn: “any individual” now meant only some individuals, and discrimination meant “invidious discrimination,” so that the private sector could initiate much desired affirmative action programs.

Fifteen years too late, Justice William Brennan’s linguistic tour-de-force in the 1979 case Steelworkers v. Weber undercut the statutory barriers to affirmative action, but at a price. His topsy-turvy reimagination of Title VII, which I discuss at length in Forbidden Grounds, undercut the legitimacy of his decision. Ironically, applying Title VII to the private sector introduced the wrong set of monopoly rules for a shifting racial landscape.

Title VII, as interpreted, also turned out to be a mistake not only in what it forbade but also in what it required. Having committed itself to ending private sector discrimination in employment, the legislation had to guard against the risk of private circumvention of the law. The original legislation thus seeks to ferret out covert discrimination, without blocking the routine use of a “professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.”

It was not to be. In the 1971 decision in Griggs v. Duke Power Co., a clueless Chief Justice Warren Burger wrenched the word “used” out of context, so that the 1964 Act now strictly forbade the use of any such test with an unintended disparate impact, unless it met some undefined test of “business necessity.” Griggs has backfired, for the banning of these tests has made workplace decisions less efficient and has increased the use of “statistical discrimination” by employers.

As Jason Riley recently reminded us in the Wall Street Journal, once employers cannot screen for individual ability, they revert to global judgments about the relative strength of black and white workers, which throws needless roadblocks in the path of able minority workers.

These statutory mistakes continue to haunt modern debates over civil rights. The correct response to all these maneuvers is to repeal Title VII, which should open up more labor opportunities at all economic levels. But civil rights supporters continue to believe that the only antidote to segregation is more big government, not market liberalization. The price of that error is high.

On Saturday, August 24, 2013, a somber and resentful liberal group took to the steps of the Lincoln Memorial to reflect on the unmet promises of the last 50 years. None of the participants could deny the amount of racial progress that has been made in the last five decades, but they all did lament the stubbornly slow rate of economic progress.

Predictably, no one brought up the failed liberal economic policies that have contributed to the current impasse. Nancy Pelosi, however, was on the scene championing a movement in Congress to “make the minimum wage a living wage,” without asking whether such an initiative would increase unemployment for unskilled minority workers denied their first critical opportunity to get a job (as it surely would).

Our Cloudy Civil Rights Future

These major missteps on employment laws have been replicated by the equally aggressive Congressional efforts to regulate private activities in education, housing, and health care, where the scene is much more complicated than it was in 1963. Managing race discrimination in complex markets requires a real appreciation of how to link means with ends. The commitment to strong government action against various forms of diffuse social evils always consumes extensive social resources on compliance that could be better spent on private job creation. The constant effort to increase the number and size of transfer payments creates a political situation in which the search for private gain further diminishes the size of the overall social pie.

The current inheritors of King’s civil rights movement never think beyond the illusory direct benefits to their favored short-term target, ignorant of the powerful pressures that chew up their social agenda. Rather than looking hard at their own programs, they tragically work to resurrect the moral outrage of 1963. So Julian Bond says with a straight face: “We march because Trayvon Martin has joined Emmett Till in the pantheon of young black martyrs.”

The movement does no better when it denounces the recent Supreme Court decision in Shelby County v Holder as a virtual return to the Jim Crow practices of the pre-civil rights era, when it is hard to utter a kind word in defense of a preclearance procedure that is tied to the voting turnouts in the 1964 elections.

The modern champions of the civil rights movement make these overwrought comparisons to earlier days because they know that the regalvanized movement needs a fat target at which to shoot. The messy issues around labor, housing, and education don’t provide that target, but raise hard technical issues on which these leaders have nothing useful to contribute. So the current economic frustrations morph into a widespread uneasiness.

Al Sharpton and his fellow speakers at the Washington rally have forfeited any claim to the universal appeal of the “I have a Dream” speech. No matter what their fervor, they cannot appeal to the sentiments of the country as a whole. Instead, on any questions of future reform, they have become their own worst enemy.