Why I don't entirely respect constitutional law (although I agree that we need it)

I accept the political science case for having a Constitution and court system, with the courts having a mandate, a la Marbury v. Madison, to say what the law "is" (and mythically has always been, from the moment when the provision at issue was adopted).  The case involves having a built-in structure and set of constraints (especially if some of them are pretty good, as is the case with many of our amendments), and then empowering professional interpreters who, although obviously and unavoidably political actors who have been selected by other political actors, have some degree of insulation from direct political control by anyone else.

It stops working as well when things get as polarized as they are right now - e.g., when everyone knows that the "answer" to a whole set of heated questions, possibly for decades, depends solely on whether a Democratic or Republican president gets to appoint the deciding 5-4 vote.  But at that point it's not like some other set of institutions will necessarily work better - rather, it means that social institutions may be dangerously falling apart, with no obvious structural or institutional solution being available.

(Along those lines, if I may digress for a moment, I keenly remember a freshman political science class I had in fall 1974 in which the professor - who nonetheless went on to have a highly successful career in his field - based his institutional theories on the "success story" of Lebanon, in which the power-sharing structure of the legislature, according to him, kept all the rival groups happy.  Oops, then 1976 happened - but the point, of course, was that these institutions couldn't handle the stress they were about to face, not necessarily that some other design would have worked better.)

But to return to con law, I want to address Scalia despite the "nil nisi bonum" principle.  I disliked his opinions, mainly because I have different policy preferences, but secondarily because I was repelled by their tone and "holier than thou" presumption, which I found tendentious.  (I was probably influenced by the degree of respect - not the very highest, although they had very high standards - that I believed, when I arrived at the University of Chicago law faculty in 1987, that the senior faculty members, both liberal and conservative, had had for him prior to his departure, initially for an appellate position, several years earlier.)

Because I disliked his positions on policy grounds, and because I was annoyed by his sweeping claims to unique impersonal objectivity (which somehow always came out his way, if it really mattered), I noticed what - if one applied academic standards to his writing - seemed to be the really intellectually shoddy aspects of his work, which might have disqualified it from even being published (other than in a student-edited journal, obviously), had the setting in which he was publishing it been one that required care and rigor.

Big, big "if" there - "if one applied academic standards to his writing."  Obviously, it's not clear that one can or should view judicial decisions this way, or that opinions by judges on the other side would clear the hurdle either, or that it's possible to achieve academic rigor when one is writing a bunch of opinions every term in a 9-judge court.  But still, intellectually I think it's clear that he didn't do better because he didn't care to, and in his setting didn't need to.  And again, it's only fair to note that this is not a comparative analysis of him versus other judges - it's rather him versus what he appeared to be claiming for himself.

Should one be an "originalist"?  It's not entirely clear how one is supposed to assess this, and it is entirely clear that no one ever approaches this question (on either side of the debate) behind the veil, in the sense of not knowing whether it will be good or bad for their independent policy preferences.  (Perhaps the best defense of this type of linkage comes from Dworkin, who argued that of course one will have deep moral views that will inflect everything, so the fact that these views inflect both one's constitutional approach and one's policy preferences is not just cheating.)

Suppose one is an originalist in the sense Scalia claimed to give the term.  Then what role exactly is legal history supposed to play in the analysis?  Although here I am well outside my areas of professional expertise, I believe that this is not entirely specified (or specifiable) either.  The issue isn't quite what people thought at the time, but what particular words ostensibly meant at the time.  But the latter question clearly can be illuminated by all sorts of outside evidence.

Serious academic lawyers who are interested in the relevance of legal history to issues of constitutional interpretation have a pet phrase describing what they know they must, as a matter of good faith and intellectual seriousness, try to avoid or at least minimize: "law office history."  This has been defined as "historical work performed in a law office for advocacy purposes. The phrase 'law office' highlights that it is both advocacy-oriented and unlikely to be good history."

In this regard, as Mark Graber noted in a Balkinization post: "Scalia’s denunciations of affirmative action never engaged with the substantial scholarly literature maintaining that the Republicans who framed the post-Civil War Amendments frequently enacted race-conscious programs.  His aggressive attacks on regulatory takings never engaged with the scholarly debate over whether the conception of regulatory takings even existed in 1789.  His support for corporate contributions in political campaigns refused to tackle antebellum legal decisions holding that states were free to restrict corporate charters in any way the people thought best for the public interest.  He never sought to refute Saul Cornell's influential claim that the right to bear arms in 1791 was the right to be part of a state militia."

Paul Campos makes similar points in an even more scathing Salon post.

Once one is not limited to "originalism," none of this proves that Scalia was "wrong."  Campos notes that one can defend Scalia's results in good faith, if one views the Constitution as a "living document," the meaning of which must evolve to reflect changing circumstances.  But of course Scalia denied doing this.

Even within originalism, this is not to say that Scalia couldn't have engaged with those contrary points and still come out the same way.  Not only is history ambiguous and often debatable, but once one is looking at a text's "original meaning," rather than just at what various people thought at a given time, there is presumably more interpretive space, and the nature of the enterprise (and how a "right answer" is defined, to begin with) is even more ambiguous.

But his not engaging with contrary evidence is a harsh indictment in context - although even here, there is murk regarding how just far one needs to go, in a judicial opinion.  It's not as if the judges can or should be sending out their draft opinions to readers selected by the editors of academic journals, who then will issue them "revise and resubmit" guidelines.  What makes it so devastating is that the things Scalia ignored were so contrary to his claims, and that his ignoring them seemed so suspiciously selective.  Hence the view among many constitutional lawyers that one of Scalia's chief policy arguments for originalism versus, say, legislative history - that it provides constraints, rather than allowing one to pick and choose opportunistically - turns out to be highly questionable at best, and not just in his hands.

Bottom line, with judges we are in the realm of Power, not just that of argumentation and reasoning that is judged based on its merits (one of the things I like about the academic realm - it's far from perfect, but plain old intellectual merit has some weight and influence).  Had Scalia remained at the University of Chicago and published articles making the same arguments as his court opinions, the price of his not engaging properly would have been steep, albeit purely reputational.  (And presumably, following his different incentives and timing constraints, he would have engaged more.)  Once he was at the Court, even his academic writings on the side were going to be judged in the context of his being a Supreme Court Justice.  And obviously this had to be so - his opinions actually became part of the nation's "constitutional law," because a Justice was writing them in actual cases.

I accept that Power matters - how could I dispute this? - but writings that matter due to Power are different than writings that can only matter based on their merits or interest to the reader.  In my field, I don't have to treat anything as authoritative just because X, Y, or Z said it.  There are of course important ideas to explore, which had important authors whose views as to these ideas (and other things) are independently interesting - but based on their independent merits or interest, not due to Power.  (Unless Power is actually one's topic, but then it's being studied, not deferred to.)

This is why I've always liked being in a field where the determination (or, at least, personal assessment) of what and whose work matters, and why, doesn't depend on their job titles.