In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.” This claim is contrary to the received wisdom about Scalia. But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to the progressive transformation of the United States.
But Sunstein’s arguments are weak. First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.
Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home. First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding. Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism. The ordinary meaning of arms is not limited to some particular set of firearms that people have on their mind but to a category of things defined by their function. It would be particularly bizarre to confine the coverage to firearms existing in 1789, when there is no evidence of such an intent and when the phrase appears in a document that was meant to endure for the ages.
Sunstein also notes that some historians disagree with the interpretation. But Sunstein provides no account of persuasiveness of the evidence for this disagreement, and in any event, originalism applies even in the face of disagreement. As Michael Rappaport and I also argue, the original meaning is constituted by the better supported meaning, even if other meanings are plausible.
Sunstein also argues that Heller also reflects a “moral commitment that has come to be seen as defining for millions of Americans” and further that it is hard to avoid reading the Constitution in light of moral commitments. But Scalia’s career is monument to putting to one side moral and political commitments. As a policy matter, Scalia was hardly enthusiastic about the giving accused criminals more rights or permitting flag burning, but he rendered many decisions, including those that relied almost entirely on original meaning rather than precedent, which delivered these results.
Original meaning depends on empirical facts about the world, equally available to all. In contrast, political and moral commitments are personal preferences. Thus, original meaning and politics are actually not so difficult to separate in principle. The separation does become more difficult in practice, if one lives and works, as do most professors, almost entirely with people who share similar political commitments. In that case, it becomes harder to understand or accept laws that are premised on views that seem utterly foreign.
Such insularity may also lead to a scholar to overlook relevant articles. For instance, Sunstein in this essay suggests that Freedman Bureau’s work on behalf of the newly freed slaves cuts in favor of the constitutionality of affirmative action, but my co-blogger Michael Rappaport has shown why that is not the case. Sunstein also argues that the Taking Clause only applies to physical takings. But again he ignores scholarship—again by Michael Rappaport—that demonstrates that the meaning of the Takings Clause, as incorporated, may well be different because of developments in antebellum America.
I assume that Sunstein’s brief essay will be published in an issue dedicated to Justice Scalia, but it does his memory no honor.