Justice Antonin Scalia was a conservative stalwart, but his lasting legacy may be more liberal than one would expect. Because while Justice Scalia rightly saw the importance of the Constitution’s text and history—indeed, that will be one of his great legacies—he often failed to appreciate the extent to which the Constitution’s text and history are fundamentally progressive.
In 2005, Justice Scalia described himself as "one of a small number of judges, small number of anybody—judges, professors, lawyers—who are known as originalists." Just over ten years later, Justice Scalia is being hailed for reshaping the way everyone—judges, professors, lawyers—think and talk about the law. As one commenter noted, “His achievement—I think an irreversible achievement—was to make people think about originalism.” According to another, “With Scalia on the bench, academics, lawyers and jurists left, right and center were forced to confront originalist theory.”
Asked once to explain “originalism,” Justice Scalia said, “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” By focusing on the text of the Constitution—and the meaning of the text at the time the Constitution was adopted—Justice Scalia helped promote a version of originalism with strong intuitive appeal.
The Constitution is, after all, a legal document. Where the text of the Constitution is clear, no one would suggest that it can be ignored because it was written a long time ago. And the Constitution has, after all, fixed meaning. While that meaning can be applied to changing circumstances, it shouldn’t change simply to reflect the views of any given judge on the bench. Justice Scalia was clearly on to something.
In fact, this basic idea—Scalia’s basic idea—that we should look to the Constitution’s original meaning in answering contemporary legal questions, has influenced prominent progressive academics, such as Akhil Amar, Jack Balkin and James Ryan, and was central to the founding of our organization, the Constitutional Accountability Center (CAC). As Professor Ryan has explained, “the open-ended provisions of the Constitution establish general principles—equal protection, prohibitions on cruel and unusual punishment, and freedom of speech, among others. This is what the language means, and that meaning—and the general principles—do not change. What can change, however, is the application of those principles over time.”
We think Justice Scalia would have agreed with this, at least in the abstract. In explaining originalism in one speech, he cited approvingly Chief Justice John Marshall’s decision to interpret the Constitution expansively: “Since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future.”
Yet while we agree with Justice Scalia on this basic premise, we have far more often than not disagreed with where the premise leads in individual cases. As CAC’s founder Doug Kendall explained, “[t]he best legal scholarship, rooted in text and history, points to the powerful conclusion that the Constitution is progressive in its most vital respects.”
Indeed, Justice Scalia himself wrote an opinion that provides a stunning demonstration of that fact in a case called Arizona v. Inter Tribal Council of Arizona about a restrictive Arizona voter registration law. In his opinion for a seven-Justice majority, Justice Scalia used “both constitutional text and history to show that that the Elections Clause gives the federal government broad power to preempt state law in order to protect the right to vote in federal elections.” Justice Scalia also demonstrated the progressive nature of constitutional text and history in numerous opinions addressing the scope of the Fourth and Sixth Amendments.
Significantly, it’s not just progressive academics and advocates who have come to realize that the Constitution, particularly as amended during Reconstruction, is a fundamentally progressive document. In fact, the Supreme Court’s more liberal Justices have increasingly begun to join their conservative colleagues in embracing the Constitution’s text and history.
At her Supreme Court confirmation hearing, then-Judge Sonia Sotomayor described the Constitution as “immutable” and explained that one must look to the “words” of the Constitution in interpreting it. Then-Solicitor General Elena Kagan said something similar at her own Supreme Court confirmation hearing, calling the Constitution an “enduring document,” one that should be interpreted by “look[ing] to text, to history, to traditions, to precedent, certainly, and to the principles embodied in that precedent.” Indeed, it would be quite surprising if President Obama’s nominee to succeed Justice Scalia didn’t similarly lay claim to the Constitution’s text and history.
Justice Ruth Bader Ginsburg has also embraced the text and history of the Constitution, even describing herself as an “originalist.” And this embrace is reflected in her opinions. Most notably, in her concurrence in NFIB v. Sebelius, the constitutional challenge to the Affordable Care Act, Justice Ginsburg discussed an important, but little-known, piece of Framing-era history that sheds light on the scope of federal power.
Even Justice Stephen Breyer, the Justice least associated with originalism, has looked to the Constitution’s text and history, as he did in the case about the constitutionality of President Obama’s recess appointments.
Justice Scalia surely must have been pleased to see his colleagues embracing the Constitution’s text and history, even if he often disagreed with what they found there. And progressives should be pleased, too, because they’ll find much to like about where the Constitution’s text and history lead.
Consider some of the big cases before the Court this Term. In Fisher v. University of Texas at Austin, the Court is considering whether UT-Austin’s holistic consideration of race in undergraduate admissions violates the Equal Protection Clause of the Fourteenth Amendment. When one looks to the text and history of the Fourteenth Amendment, it is clear that it does not. The Framers of the Fourteenth Amendment rejected proposals to prohibit any and all use of racial classifications by the government and, in fact, enacted a number of forward-looking, race-conscious measures to ensure equality of opportunity for all regardless of race and fulfill the promise of freedom guaranteed by the Fourteenth Amendment.
Or consider Whole Woman’s Health v. Hellerstadt, a Fourteenth Amendment challenge to a package of onerous restrictions designed to close abortion clinics in Texas. Again, the text and history of the Fourteenth Amendment make clear that those restrictions cannot pass constitutional muster. As the debates over the Fourteenth Amendment reveal, the Framers of the Fourteenth Amendment were disturbed by the treatment of enslaved families, including women who were forced to bear children, and they wrote the Fourteenth Amendment to guarantee basic rights of personal liberty and bodily integrity to all.
Finally, in Evenwel v. Abbott, the Court is considering whether the Fourteenth Amendment requires states to draw state legislative districts that contain a substantially equal number of voters, excluding those who are not eligible to vote (such as children and lawful non-citizen residents). Again, the text and history of the Fourteenth Amendment make clear that the answer is no; instead, the drafters of the Amendment intended that all persons be counted for the purposes of democratic representation. Notably, Justice Kagan embraced that history at oral argument, pressing one of the advocates on how his argument could be reconciled with that history.
The opportunities for progressive originalism to take hold and reshape the law will surely continue in the years ahead in countless areas. In voting rights cases, for example, progressives will surely look to Justice Ginsburg’s dissent in Shelby County v. Holder, which made clear that the right to vote is deeply rooted in the Constitution’s text and history. There, she explained that the Reconstruction Framers gave Congress the power and authority to protect the nation’s citizens from state violations of their rights by authorizing transformative new federal statutes to uproot “ ‘all vestiges of unfreedom and inequality.’ ”
In campaign finance cases, progressives can point to constitutional text and history, which demonstrate the Framers’ deep concern about preventing the nation’s new institutions of government from developing an “improper dependence” on outside forces and special interests.
And in access-to-the-courts cases, progressives can point to constitutional text and history demonstrating that the Framers wrote Article III to ensure that where there is violation of a legal right, there is also a legal remedy that can be enforced in the federal courts. The list could go on and on.
So even as progressives rightly resist much of what Justice Scalia believed in, we hope they will continue to embrace this key part of his legacy: looking to the Constitution’s text and history. After all, by spending less time “fighting about judicial method,” progressives and conservatives can spend more time, as Doug Kendall put it, “fighting about the meaning of the Constitution itself.” That’s a fight progressives can win.
Elizabeth Wydra and Brianne Gorod are president and chief counsel, respectively, of the Constitutional Accountability Center.
