Justice Scalia, the Hypocrite

Scalia has long been known as an "originalist;" he allegedly interprets the Constitution in the manner that it would have been interpreted by the original framers of the document. If it weren't already obvious, though, two days ago he made plain that what he really does is goes with the originalist interpretation if it fits his ideology; otherwise, he does whatever he feels like.

Two days ago, of course, was the oral argument in McDonald v. City of Chicago, a case about whether the individual right to gun ownership declared in District of Columbia v. Heller is "incorporated" to the several states.

For some background, the Bill of Rights has always been known to apply against the Federal Government, but not necessarily against the states. Over the years, a doctrine known as "Substantive Due Process" has emerged, by which individual Amendments in the Bill of Rights have been held to apply to state authority in addition to federal authority. The rationale is that a particular phrase from the 14th Amendment suggests that some fundamental rights cannot be abridged by either the Federal Government or by the States. Notably, Scalia and Thomas (and likely Roberts and Alito) strongly disfavor this doctrine.

So again, McDonald presents the question of whether and to what degree the Second Amendment can be used to prevent states from regulating individual gun ownership. The McDonald case (still) has the potential to be fascinating because it shuffles the classic conservative/liberal split on the Supreme Court; the conservatives want to expand individual gun rights, but they are hostile to substantive due process. Liberals don't want to expand individual gun rights (they surely think DC v. Heller was wrongly decided), but are happy with the substantive due process doctrine. So really, no one necessarily knows how this case will be decided because ideologies on both sides of the fence are conflicted by the facts. It seems likely from recent Supreme Court precedent that the Second Amendment will be incorporated, though, so the real issue is how this will occur.

The wrinkle is as follows: Substantive Due Process is the easy way, but not the only way to incorporated the 2nd Amendment to the States. The 14th Amendment has another clause, known as the "Privileges or Immunities Clause," which many, if not most, legal scholars feel is actually a more apporpriate mechanism for incorporation. However, the Privileges or Immunities clause was rendered a "dead letter" by the infamous Slaughterhouse Cases in the 1870s, universally paned as some of the worst Supreme Court precedent in history (in the ballpark of Korematsu v. United States, which was the Japanese internment camp case). But, for various reasons, the plaintiff in McDonald has argued that the Privileges or Immunities clause is actually the appropriate means of incorporated the 2nd Amendment.

My criticism comes from what happened in the oral argument, two of the Justices asked the attorney for McDonald what other rights would be incorporated if the Privileges or Immunities clause were revived. The attorney responded that he was not sure. Scalia, of course, asks "Doesn't that trouble you?" Maybe this is a seemingly innocuous question, but it belies the way that Scalia (and for that matter, the other Justices on the court) wants to analyze the issue in a results-oriented lens. Maybe it is completely obvious that the entire Supreme Court already does this, but Scalia blatantly discusses his originalism with such vigor that, to me, it is now hard to view him as having any actual judicial integrity. How can you claim to be an originalist, while at the same time caring how correcting 140 years of bad law would affect the future?

It seems to be the case nowadays that "idealogue" is a bad word. I have never thought so and feel like I have to defend this position more and more. Since when was it a bad thing to have principled beliefs? I have disliked Scalia's jurisprudence for many reasons for a long time, but he at least seemed to have the courage of his convictions. Unforunately, I think that this is no longer the case. And in the entirety of the coverage of this case I have seen, no one wants to call him on it.