by GEORGE BLAUSTEIN
Jennifer Murphy, Butterfly Skull. 2010, Paper and Thread IMAGE/Clint Roenisch Gallery
Antonin Scalia and American Religion
Late in life, Thomas Jefferson took a razor to his King James Bible and cut out all the nice parts from the Gospels: Christ’s life and death, the Sermon on the Mount, the parables, the Golden Rule. He pasted those parts alongside corresponding Greek, Latin, and French translations and gave the world The Life and Morals of Jesus of Nazareth. Gone are the angels, the miracles, Christ’s divinity, the resurrection, anything supernatural. What’s left is a clean and ethical extraction. (You can still read the chaff at the Smithsonian: Jefferson kept his carved-up King James intact, like the preserved skeleton of a vanished species.) For Antonin Scalia, this arrogant violation made Jefferson the first activist judge. It is cowardly and ungrateful to cut out the parts you don’t like, to take the good without the bad.
Scalia’s antipathy to the Jefferson Bible, which he expressed in a 1996 speech at the Mississippi College of Law, was key to his variety of “originalism,” the philosophy of constitutional interpretation with which he was most associated. Originalism insists on interpreting the Constitution as it was understood at the time of its ratification, but this definition only raises questions: about whose understanding matters, about the virtues and vices of the framers, about the framers’ intentions versus the text’s public meaning, about whether our responsibility is to 18th-century language or 18th-century values, about whether we can know the past at all. The clearest thing one can say about originalism is that it opposes the idea of a “living Constitution.” Beyond that, it is a label that obscures a great many contradictions within the ranks of conservative jurisprudence.
Scalia’s originalism was a form of self-abnegation consistent with the ritual self-abnegations of Catholic history. It says to the interpreter, don’t be led into temptation, but it acknowledges how tempting those temptations can be. (Not for nothing did Robert H. Bork, the first originalist martyr?—?and later a convert to Catholicism?—?title his book The Tempting of America: The Political Seduction of the Law.) Who wouldn’t want to carve up the Bible and ignore the hard parts? Who wouldn’t want to extrapolate a general right to privacy from the rights specifically mentioned in the Constitution? (In Griswold v. Connecticut [1965], Justice William O. Douglas found that general right in the Constitution’s “penumbras” and “emanations”?—?the kind of vocabulary, and decision, that originalists despise.) Who wouldn’t want to believe that the Constitution lives, that its meaning evolves as our own sensibilities and technologies evolve, that the old We the People who wrote and ratified the Constitution includes the modern We the People, too? Alas, the living Constitution is a false miracle: “The Constitution that I interpret and apply,” Scalia wrote in 2002, “is not living but dead?—?or, as I prefer to put it, enduring.” Originalism kills the Constitution so that the Constitution can endure, so that the Constitution won’t betray itself.
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