"I have classes of little kids who come to the court, and they recite very proudly what they've been taught, 'The Constitution is a living document. ' It isn't a living document! It's dead. Dead, dead, dead!"
Justice Antonin Scalia (1)
No one expects Supreme Court Justices to be completely consistent across the vast range of emotionally charged and controversial constitutional law issues they are called upon to decide. Moreover, some Justices, such as Stevens, O'Connor, and Breyer, reject grand theories of interpretation and favor a one-case-at-a-time approach to judging. Nevertheless, when Supreme Court Justices express strong preferences about proper and improper methods of constitutional interpretation, their opinions should be at least reasonably consistent with those positions.
Justices Scalia and Thomas have boldly and frequently made the case that they resolve constitutional law cases with a strong emphasis on the text and original meaning of the language of the Constitution. (2) Although their ideologies have nuanced differences (such as their use of precedent and what evidence counts towards original meaning), both Justices in their opinions and in their off-the-Court writings proclaim that judges should leave their personal values out of constitutional interpretation and only overturn the decisions of more accountable political officials when
required to by clear text or history. (3) Both Justices, however, have consistently engaged in aggressive acts of judicial review based on personal preferences rather than text or history. It would take a book to catalog the many examples where Scalia and Thomas have rather obviously veered from their alleged disdain for the "Living Constitution," but the cases below are representative and reflect broad rules of constitutional law adopted by these two Justices that prohibit elected officials from implementing important legislative objectives.
Justice Thomas wrote a concurring opinion in the Court's latest campaign finance case arguing that virtually all laws that limit the spending of money on or for political campaigns are unconstitutional under the First Amendment. (4) Although Scalia did not join that opinion, he too has voted to strike down almost every campaign finance law that he has been called upon to judge while sitting on the Court. (5) In addition, both Justices have said they would prohibit Congress, the President, and every level of state and local government from employing any and all racial preferences. (6) Both Justices would also prevent Congress from using state governments to help implement federal laws enacted pursuant to Congress's enumerated powers, (7) and they would stop most plaintiffs from suing any state for money damages because of the doctrine of sovereign immunity. (8) In none of these examples, which cut a huge swath through constitutional law, and which significantly alter the ways both federal and state governments do business, did Justices Scalia or Thomas make persuasive arguments from either text or history. Thus, contrary to what Justices Scalia and Thomas would have you believe, for them, the Constitution is very much alive and kicking up a storm.
CAMPAIGN FINANCE REFORM
Concluding that spending money on political campaigns is political speech, (9) both Justices Scalia and Thomas have consistently voted to strike down state and federal laws regulating the effects of money on our election system. Neither one, however, has ever made a serious effort to harmonize these strong exercises of judicial review with the text or original meaning of the First Amendment.
In the landmark Citizens United case, Justice Scalia did spend some time trying to show that the Founding Fathers might have deemed corporations to have free speech rights, though he also concluded that, even if the framers did not, corporations play a different role today than in yesteryear (a great example of the living Constitution approach). (10) But Scalia did not make any effort in Citizens United, or anywhere else, to demonstrate that anyone living in 1791 would have privileged corporate political speech over legislative efforts to combat corruption.
Last term, in McCutcheon v. FEC, Justice Thomas repeated his familiar refrain that the Founding Fathers thought that political speech was vitally important and needed special protection under the First Amendment. Fair enough, but that determination tells us nothing about whether the people alive in 1791 would have equated the writing of a campaign check by a person in Virginia to a politician in California as the equivalent of constitutionally protected political speech. Of course, even if writing a check is the equivalent of political speech pursuant to the original meaning of the First Amendment, the question remains whether such speech can be regulated to further the vital governmental interest in preventing corruption. Neither Justice has ever addressed that key issue as a historical matter, though Lawrence Lessig has, and concluded that the Framers' view of corruption would have been broad enough to justify most campaign finance laws. (11) Scalia and Thomas have not addressed that historical analysis.
Striking down state and federal campaign finance laws has significant effects on our representative democracy. Yet, neither Scalia nor Thomas has ever provided significant historical analysis of the issue. I am not criticizing that failure as a matter of constitutional interpretation (I am no originalist), but it does shine a bright light on their often harsh critiques of the importance of text and history in...