Here is a wonderful question that Professor Michael Dorf presents to "originalists that drives home this point:
Even when the evidence of the original understanding is clear, and even when it is simple to locate an appropriate analogy, originalism may still yield bad answers because values change.
For example, the people who wrote and ratified the Equal Protection Clause of the Fourteenth Amendment in 1868 thought it was consistent with separate spheres for men and women. In the nineteenth century, and well into the twentieth, women were denied the most basic rights and opportunities because their proper role was understood to be that of wife and mother. Yet the modern Supreme Court has quite correctly held that, given modern understandings, official sex discrimination is presumptively unconstitutional.
How would Scalia answer this question? It is inarguable that the 14th Amendment when adopted, was NOT understood to prohibit discrimination based on gender. That is the clear original understanding of the specific question. Where Dorf goes wrong, in my opinion, is to fail to note that one need not stray from originalism to "breathe life" into the 14th and honor and serve its original purpose - to prevent unequal application of the law. That Americans in 1868 did not understand the gender discrimination constituted unequal treatment under the law does not undermine the serving of the original purpose of the 14th by understanding that this 1868 view is wrong - gender discrimination is indeed unequal treatment under the law. My view is that this is a perfectly appropriate originalist result that is faithful to the original purpose of the 14th Amendment.
Here is Scalia's answer to the question:
Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, "Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?" And the Court would say, "Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote." But that's not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, "What does it mean?" Well, it clearly doesn't mean that you can't discriminate in the franchise -- not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn't unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.
This passage is critical. What Scalia says is that even though the original understanding of the 14th Amendment would, if applied today, prohibit gender discrimination, since in 1868 it was understood not to, then the 19th Amendment was necessary to give women the vote. This leaves Scalia with a significant problem in my view - what of other forms of gender discrimination? To me, Scalia's statements require him to state that other forms of gender discrimination are CONSTITUTIONAL.
Besides being abhorrent, this is also wrong in my view. Why? Because Scalia ignores that which Marshall did not - the common law tradition embodied in the power of the judiciary. The Constitution is sparse in details, written, appropriately, to state general principles and purposes. In my view, the Constitution is written to allow the judiciary to "breathe life" into its specific provsions and application to particular cases. To me this is the only rational view possible.
Back to Scalia:
Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is a constitution we are expounding. And 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.
Well, if it is a constitution that changes, you wouldn't have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning. But anyway, that is no longer the orthodoxy.
Let's be clear what Scalia just said - Marshall was wrong. And Scalia is utterly dishonest in his disagreement. No one says "change" at whim. Expansive in this sense is precisely to give it life to address current circumstances. But intellectual dishonesty is a watchword with Scalia.
But more importantly, it simply does not make sense. Scalia's view of Constitutional interpretation simply does not work.
It's funny how "public intellectuals" all concerned about anonymous Internet commenters have nothng to say about this.
