Scalia and the Fallacy of Constitutional Literalism

Written by Paxton Hyde

There has been a good amount of debate concerning the legacy of Supreme Court Justice Antonin Scalia after his death in mid-February. Some have rightly refused to perform the usual immortalization granted to the deceased, citing the cruelness of his conservative positions on abortion, criminal law, race, gender, and sexual orientation, among other issues. Those who do immortalize him remember his insight and incisive criticisms of opponents’ half-baked arguments, as well as his commitment to defending the literal and original meaning of the Constitution. As a textualist and originalist, he based his interpretations of legal texts on their literal and originally intended meanings. For the sake of brevity, this combination of viewpoints will be dubbed “literalism” for the duration of the article. Advocates of literalism argue that it is effective in protecting individual and states’ rights and ensuring their stability—yet, based on his less-than-rosy reputation, Scalia does not seem to have achieved this. This is because the excessive simplicity and rigidity of literalism makes it an unjust and improper mode of interpretation.

The nature of the Constitution requires that it allow for flexibility. No one reading this article could have had any impact on what was written in it, therefore the courts must serve as avenues through which the rights it outlines can be expanded or amended. Although judges are appointed rather than democratically elected, they should nonetheless make use of their unique power to represent the public definition of justice, which has undoubtedly changed since the drafting of the Constitution. A cumbersome amendment process is necessary to ensure stability, but at the same time isolates the Constitution from direct democratic influence. It therefore falls on judges to interpret the law in a way that reflects the current definition of justice, while also maintaining the purpose of the Constitution. A policy of rigid literalism does not satisfy this obligation.

It fails because it is wholly committed to the Constitution, which may or may not be acceptable just in its literal interpretation. To his credit, Scalia has been known to vote against conservative ideology when it was not supported by the Constitution, such as in the cases of expanding the rights of criminal defendants and terrorists, and affirming the citizen’s right to burn the flag. Yet in Romer v. Evans (517 U.S. 620), which struck down a Colorado constitutional amendment preventing anti-discrimination laws from applying to homosexuals, Scalia dissented on the grounds that the Court should not have the power to rule on the issue because homosexuality is not specifically mentioned in the Constitution. Clearly, it does not contain all the answers to the myriad issues in contemporary society. In rebuttal to Scalia’s dissent, the Ninth Amendment states that the rights specifically stated in the Constitution are not an exhaustive list (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). Is it not absurd to ignore or water down the meaning of this provision while claiming to interpret the Constitution at its exact word? Literalism cannot claim to be an honest interpretation of law when the law itself denounces a literal interpretation.

The second flaw of literalism is that its simplicity perverts the process of legal arguments in court, making alternatives seem relatively convoluted and therefore subject to great skepticism, though they may be more logical and just. As recently demonstrated by Donald Trump, appeal in politics depends less on promoting sound policies than on the ability to present ideas and arguments in an appealing way. It is natural to gravitate towards the simplest, most presentable logic. The consequence of this unavoidable bias in our justice system is the preference for arguments that are more straightforward and require less evidence.

Take, for example, the Supreme Court decision on Fisher v. University of Texas (570 U.S.), in which a white student sued the University after being denied admission, contending that University policy of race-based admissions violated equal protection guaranteed by the Fourteenth Amendment. The Court ruled 7-1 in favor of Fisher in June 2013, with Justices Kennedy, Scalia, and Thomas arguing for the majority opinion. They asserted that the University’s goal of racial diversity and the consideration of race in its admissions process were unconstitutional on the grounds that equal protection prohibits one race from gaining privileges over another, and secondly, that there was not sufficient evidence to indicate that this use of racial classification was benign. Ginsburg was the sole dissenter, arguing that a publicly disclosed policy of race-based admissions was preferable to race-blindness, considering the effects of a history of legally sanctioned discrimination and the possibility that banning race-based admission would cause universities to adopt covert policies that could not be subjected to scrutiny.

In this case it was simple for Fisher to point to the admissions policy that privileges applicants based on their race and cry “unfair!”—she was correct on a superficial level. In comparing the explicit discrimination of affirmative action to the equal protection clause, it takes only a second to see that they are not compatible in a literal sense. Yet to prove that affirmative action is actually necessary to comply with equal protection, one must prove that racial diversity is a positive goal for an academic institution and that minority applicants are disadvantaged by institutional racism to the extent that favoring their applications puts them equal to, rather than above, their white peers. Though these facts may be evident, the argument for affirmative action is subject to doubt and criticism because it is necessarily longer and more convoluted than the literal one. The relative simplicity of a literalist argument gives it an inherent advantage in this justice system where a juror’s perception may be skewed by the presentation of an argument. To adopt literalism as a basis for argument is not sophisticated or the sign of intellectualism, it is just lazy.

Moving forward, it would be reasonable to increase our scrutiny of literalism and consider whether it actually achieves greater justice than the alternatives. In the case of Fisher, the perceived unfairness was corrected for the future, but who received justice? She probably received a comparable education at another university, but missed out on an opportunity to learn humility. A legal precedent was established for minorities that could solidify their disadvantaged position in applicant pools for college and labor. Colleges building their classes and companies hiring workers missed out on potential. In this case, the assertion that a literal interpretation of the law is more just, profitable, or beneficial, is bankrupt. There is of course the possibility that literalism is the most reasonable and just solution in other cases, but there is an equal chance that its allure will lead a court to another destructive decision such as this. In its inflexibility and exploitation of simplicity, literalism is apathetic to justice.

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