Scalia’s Uncanny Powers: Originalism Exposed
The U.S. Supreme Court was faced this term with the question of whether the Feds can hang a global positioning unit on a criminal suspect’s car for a month without a warrant, and then use the satellite tracking information they acquired to convict the suspect. The answer was an emphatic “No,” which WC believes is entirely the right result. But the majority opinion was written by Justice Antonin Scalia, and that opinion exposes Justice Scalia’s theories of constitutional interpretation for the legal and logical absurdity that it is.
Justice Scalia is an “originalist.” He believes the U.S. Constitution should be interpreted as the Founding Fathers meant it. The most widely cited form of originalism, “original meaning,” emphasizes how the text would have been understood by a reasonable person in the historical period during which the Constitution was proposed, ratified, and first implemented.
Wait a moment, you say. The Founding Fathers didn’t know about GPS. Or electricity, integrated circuits, orbital mechanics, relativity, radio waves or a thousand other kinds of technology that make GPS work. For that matter, they didn’t know about the automobile to which the GPS unit was attached, the interstate freeway on which the automobile was driven, the cocaine that was allegedly sold, cell phones used to set up dales or the paper money used for the purchases. Justice Scalia’s reasonable person might think it is absurd to try and guess how a figure from the late 18th Century would understand and apply the Fourth Amendment to technology that would have been indistinguishable from magic.
But WC will show you how Justice Scalia pulled the trick off. Warning: don’t blink or you’ll miss it.
We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
United States v. Jones, p. 4
That’s right: Justice Scalia concludes that, say, James Madison, the guy who, you know, wrote the Fourth Amendment, would have extended that amendment to GPS devices. Because Justice Scalia has the uncanny ability to get his head inside the mind of a man living in 1790. Justice Scalia can magically grasp the world view of a man who lived 220 years earlier and intuit the application of that man’s words to a 21st Century set of facts.
Justice Scalia’s supernatural skill – which the Jones decision makes clear is “beyond doubt” – is the heart or originalism.
Poppycock.
What he’s really doing is mystically concluding Madison would have thought this involved the tort of trespass. Bizarre.
Even if you believe in originalism, it is useless as precedent. What makes cases useful is that they provide guidance in other cases with similar facts. But if a decision turns on mystic foofraw it’s useless as guidance in another case. Which makes Jones worthless in deciding other issues involving other 21st Century technologies: cell phone call records, world wide web searches, text message records. How can we deduce what the court would do with those technologies? Wait for Justice Scalia to exercise his mystic powers to know what James Madison would have done?
And speaking of precedent, Justice Scalia’s magic also allowed him to ignore 40 years of precedent and a well-developed body of law on the reasonable expectation of privacy. He just ignored it. Because after all, he knows what Madison would have done.
Justice Thomas is even worse. But don’t get WC started on “strict constructionism,” which is even more absurd.
Hello? U.S. Supreme Court? You’re falling further and further behind. Pretending you can deduce what Madison would do is intellectually dishonest, lends itself to purposiveness and is ultimately futile. You can pretend you know what Madison or Jay or Jefferson would have thought about Twitter. But you are pretending.
The irony is, you think you are being conservative. The truth is, you’ve got it exactly backwards.
