Tuesday, 9 October 2012

"Many Of The Truths We Cling To..."

Long-time readers will be well aware of my amateur interest in legal originalism, and my resulting interest in Antonin Scalia being locked naked in a room for all eternity with a slavering bear and sign saying "PLEASE FEED THE ANIMALS".

For the rest of you, a brief summation. In Scalia's case, originalism is the idea that you can work out any legal wrangle by sitting down, reading the constitution, and assuming the founders meant exactly what they appeared to have said, without nuance or implication.  Obviously, this is entirely fucking stupid.

There's a great article up by Richard Posner (h/t LGM) on exactly why the stupid here is both entire and involving of fucks.  The short version is this:
It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states... could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified.
One could seal the deal entirely of course by noting that what did get ratified is that slaves should only count as point six of a person.  The Constitution was written by racists and sexists, and once you edit that out, there's no foundation for arguing that all the rest of it should remain unchanging throughout time immemorial.

So, yes, originalism as a philosophy - as oppose to one of many tools in legal opinion forming - is intellectually bankrupt. I'm going over this today partially because I've only just read Posner's piece, and partially because lyndagb asked me an interesting question a couple of months ago, and I figured it was high time I addressed it.  With apologies to her for my paraphrasing, the question was this: can any links be drawn between the Constitutional originalism of conservative judges like Scalia, and the Biblical literalism that plagues so much of the Christian Right in America?

The answer, in my view, is: a little, but not really.

Certainly, both philosophies seem to have arisen entirely out of an almost pathological dislike of complexity, or at least its frequent corollary, indecision. It strikes me as no coincidence that the Christian Right and the Republican Party overlap so much in their dislike of refrained response and considered action, and that the latter can make such inroads by presenting themselves as the kind of manly man who doesn't need thinkifying to be the deciderer, the kind of the-house-is-on-fire-no-time-to-check-this-is-a-fire-hose-and-not-a-petrol-pump model of political power briefly popularised by Bush Jr.

But the reason why complexity is objectionable seems to me very different in the two cases.  Whilst I know very few Biblical literalists, and none of them are American, it doesn't seem ludicrous to suggest that the simplicity of literalism is attractive because the alternative of complexity is scary.  I'm not trying to suggest that these people are too ignorant to get their brains turning, and live in morbid fear of all them thinky-thoughts sent to them by Satan (though since I mention it...), just that the idea that there a clear, bright lines in the universe that can be easily recognised and clung to is a very comforting one.  There's enough out there in the world to worry about without having to figure out which parts of the Bible are metaphorical.

So that I get.  The kind of originalism practised by Scalia, I think, comes from two totally different sources: smugness and laziness.  Posner discusses the ambulance example, which is instructive even if Scalia manages to patch together a counter to it later:
Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so.... Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. 
Posner's argument here is that this is not, contra Scalia, an apolitical stance, since it limits governments ability to function - by forcing a ludicrous micro-management of laws that can be sensibly interpreted by anyone capable of holding a gavel without breaking their own fingers - and thus enforces smaller government by default.

I think that's a nice theory, but to be honest I don't even think Scalia deserves that much credit.  I think Scalia is just both lazy and - that horrible word again, but to channel Will Self, it's the mot juste and what can I do - an unrepentant cunt.  Originalism allows, so far as I can see, the fastest route to a verdict possible.  You just read what the Constitution says, and if it doesn't mention what's going on, you strike it down.  If it seems like it might be mentioning it, but doesn't do so explicitly, you strike it down.  Then you break for lunch.  It allows the minimum amount of work possible, and further, allows Scalia to wave the "failures" of the legislators in their face. "Shoulda said 'except when someone's dying', bitches!".  The fact that such negligence of duty can have disastrous consequences for those people is of no concern, and from Scalia's attitude, if not his legal opinions, it seems he considers it a distinct plus.  What better way to prove himself superior to the grubs in Congress than by applying their laws in such a way that innocent people get ground into the dirt?

It seems to me that this theory has rather more legs than Posner's, if only because Posner has to explain the massive concessions Scalia has made to big government so long as it's making life difficult for women, students, or anyone who doesn't want to get pepper-sprayed for not volunteering for strip searches at every street corner.  Scalia doesn't like work, does like being a dick, and everything else is just a battle between those poles.

Of course, all that goes out the window as soon as his Republican friends need him to step into the breach, at which point the man starts fizzing with the energy necessary to screw over America's legal system, but then I said Scalia is a slacker and a bully.  I didn't say he wasn't a hack.

(Plus, as Posner repeatedly demonstrates, a liar as well.  Who knew?)

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