The Supreme Court is hearing arguments tomorrow in a case that is likely to result in a ruling that race-conscious affirmative action programs are unconstitutional. One thing is certain: Antonin Scalia will vote to strike down such programs because, according to him, the Fourteenth Amendment prohibits them.
This doesn’t get said enough: Scalia is an intellectual fraud who uses a phony methodology to get whatever judicial outcomes align with his political preferences, at least in cases involving issues such as affirmative action, where those preferences are strong.
Scalia’s method is what he calls “textual originalism,” and it’s supposed to work like this: When interpreting a legal text, judges should give that text the meaning it had at the time the law was enacted – and the meaning it had (and continues to have) is the meaning the people who enacted the law thought it had at that time. Thus, as he informed an audience earlier this month, questions about whether the Constitution prohibits the death penalty or laws criminalizing abortion or same-sex relations are easy to answer:
The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.