I am no con law scholar, but in reading the Scalia dissents in the Affordable Care Act case and in the gay marriage case, it occurred to me that this is what seemed to be happening:
Affordable Care Act Case
Scalia: The text as written in the statute is what it is. We can never know what the drafters actually intended.
Drafters of the statute: …Yes, we can. In fact, we can tell you–
Scalia: NO. WE CAN NEVER KNOW. WE MUST JUST GO BY WHAT IS WRITTEN THERE. IT IS IMPOSSIBLE TO KNOW ANYONE’S INTENT, EVER.Gay Marriage Case
Scalia: I know the intents of all men from the eighteenth and early nineteenth centuries who ever had anything to do with jurisprudence and they would hate my fellow justices and also gay marriage and also just marriage in general and if you want to know anything about what these guys were thinking, just ask me.
So it occurred to me that basically Scalia’s theory of jurisprudence seems to boil down to this: It is impossible to know intent and we must only look strictly to the words as written UNLESS it has to do with someone who Scalia feels he “gets” on some kind of elemental level and then he knows all about intent, no worries, k? Which basically seems to me that Scalia’s just running around writing Founding Fathers fanfiction at this point and pouting a lot when he gets Jossed by, say, the five other Supreme Court justices, or the majority of the American public, or Congress, or whatever. “Dudes, did you guys not read my coffeeshop AU? Because pretty sure John Marshall the barista’s not down with that,” is pretty much Scalia’s attitude.
I’ve never been a huge fan of originalism, and for the first time I’ve connected it in my head to fanfiction: I’m not a huge fan of originalism because I am used to the understanding that a “canon” text can be interpreted any number of ways, and Scalia’s kind of like the bullying BNF who I’d basically ignore in fandom because he’s clearly crazy. (And originalism always seems just as maddeningly nonsensical as any piece of fandom wank you can come across. Like, copyright’s my field, and when copyright was originally set up in this country, it lasted for 28 years. Now it lasts for life of the author plus seventy years. But I didn’t notice Scalia running around ranting about protecting the intent of the original copyright drafters when the copyright extension was recently challenged.)
(And do not even ask me to explain Scalia’s outrage over the Supreme Court declaring something unconstitutional, considering that is actually the Supreme Court’s job, as established by Scalia’s problematic fave John Marshall in Marbury v. Madsion in 1803.)
Anyway, I don’t do a lot of legal posting here but I felt like my Scalia as BNF theory is an important addition to constitutional scholarship and must be shared. We should probably all anticipate a new Scalia!canon!fic wherein Jefferson and Adams hang out post-coitally and exult about the fact that they can’t legally get married because of how much marriage would destroy intimacy and their super-kinky sex life.
Just another WordPress site