Three decisions announced by the Court in the spring of 2008 enabled Scalia to reestablish himself as the “King of the Originalists.” The first of these decisions, Baze v. Rees, which was announced on April 16, challenged the use of a lethal injection consisting of a three-drug “cocktail,” including a powerful paralytic called pancuronium bromide, as an alternative to electrocution in death penalty cases. Two death row inmates, Ralph Baze and Thomas Bowling, alleged that lethal injections caused so much pain for the paralyzed and dying inmate that they constituted cruel and unusual punishment in violation of the Eighth Amendment. Speaking for the seven-justice majority in upholding the lethal injection, Chief Justice Roberts noted that thirty-six states and the federal government used lethal injections to administer the death penalty. Acknowledging the existing test of whether the form of executing the death penalty was “objectively intolerable,” the majority was still willing to allow it.1
Scalia and liberal John Paul Stevens dueled in separate concurring opinions over the originalism versus the living Constitution theories with respect to the constitutionality of the death penalty. On the lethal injection issue, Justice Stevens argued that the use of the paralytic drug was cruel and unusual punishment, because “it masks any outward sign of distress, [and thus] . . . creates a risk that the inmate will suffer excruciating pain before death occurs.” He explained that since, “several states—including Kentucky—have enacted legislation prohibiting use of the drug in animal euthanasia. . . . It is unseemly—to say the least—that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets.”2
Using his version of the evolving standards of decency test, Stevens concluded that if retribution is the stated justification for the death penalty, the decision to use the three-drug lethal cocktail to mask the pain of the injection was inconsistent with that goal: “[B]y requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim.” This, for Stevens, “actually undermines the very premise on which public approval of the retribution rationale is based.”3
In questioning the justification for the death penalty, Stevens was standing on the shoulders of five of his former judicial colleagues—Byron White, Lewis Powell, William Brennan, Thurgood Marshall, and most recently Harry Blackmun—all of whom had called for a total reexamination of the constitutionality of the death penalty.4 Stevens was concerned about the harmful public policy implications here: “the danger of discriminatory application” of the death penalty, its “excessiveness” in use, “the risk of error in capital cases,” and judicial “procedures that provide less protections to capital defendants than to ordinary offenders.” Despite his wholehearted opposition to the death penalty and the use of the three-drug cocktail, Stevens decided for this case “to respect precedents that remain part of our law” and refused to overturn Kentucky’s lethal injection law.5
While they agreed on the result in this case, Scalia dismissed Stevens’s arguments for ending the use of this form of the death penalty or the death penalty itself. Stevens’s approach, Scalia began, “is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes a significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice.”6 As he had been doing in his public speeches for years, Scalia argued that the Eighth Amendment was never intended to ban the death penalty.7
Scalia was unmoved by what he termed his colleague’s “astounding position” that the costs of the death penalty outweighed its benefits because its deterrence value could not be proven and did not satisfy its purpose of retribution. Scalia had little respect for any of Stevens’s arguments:
The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” . . . The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. . . . The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” . . . It is Justice Stevens’ experience that reigns over all.8
To the contrary, Scalia, relying on his “enduring Constitution” to rule on this issue, reached what he argued was a higher truth—this should not be the role of judges: “I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.”9
Nearly two months later, the Court ruled in the case of Boumediene v. Bush on the issue of whether alien enemy combatants captured on the battlefields of Iraq and Afghanistan and being detained in Guantanamo’s prison had the constitutional right of habeas corpus. If a petition for habeas corpus were granted, it would enable those prisoners to remove their cases from the investigatory military commissions governed by military law, to be tried in federal civilian court, thus affording them American constitutional protections. At its core, this case, like the Hamdan case in 2006, called into question Congress’s Authorization for Use of Military Force of 2001, including the powers to impose unlimited and secret detention. While these appeals were working their way to the Supreme Court for final resolution, Congress had tried to remove these and other anti-terrorism cases from the jurisdiction of the federal courts by passing the Detainee Treatment Act of 2005.
The real issue was the Suspension Clause in Article I, Section 9, Clause 2, of the Constitution, reading that only Congress has the right to suspend the writ of habeas corpus when during “Rebellion or Invasion the public Safety may require it.” It was this provision that Abraham Lincoln had ignored during the Civil War, imposing his own order for martial law in Maryland and leading to the military arrest of a Southern-sympathizing soldier named John Merryman. Lincoln then refused to observe an order by Supreme Court Chief Justice Roger Brooke Taney to release the man, an action later ruled unconstitutional by the Court.10 But that case dealt with an American citizen imprisoned in domestic territory, while Boumediene dealt with whether the Constitution applied to alien enemy combatants who were captured on the international field of battle and imprisoned indefinitely. Could Congress deny them the right to petition for habeas corpus?
Anthony Kennedy joined the Court’s four liberals and wrote the majority opinion in favor of Lakhar Boumediene. After arguing that the Court did have sufficient jurisdiction to decide this case despite the Detainee Treatment Act, the majority ruled that the Defense Department did not possess the sole power to determine an enemy combatant’s status and enforce the unlimited detention of suspects. Kennedy reviewed various Founding Era sources to demonstrate that such prisoners were protected by habeas corpus. Interpreting the same kinds of historical sources used by Scalia but reaching an opposite result, Kennedy wrote: “The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.”11 Kennedy relied on his interpretation of this same history to explain the limits for suspending that right: “That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension. . . . Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme.” For him, there was “the need for structural barriers against arbitrary suspensions of the writ.”12
Based on this historical understanding, Kennedy and the majority concluded that the habeas corpus rights extended to the alien enemy combatants in the Boumediene case and that they had not been lawfully suspended. Since, by treaty with Cuba, the area where the Guantanamo Bay prison was located was “under the complete and total control of . . . [the United States] Government,” the Constitution and the federal judiciary had “full effect at Guantanamo Bay.” Only if Congress suspended by law the writ of habeas corpus for those prisoners could they be denied judicial remedies. As a result, Kennedy ruled: “Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.”13 As to the overall issue of the effect of this ruling on the president’s powers in the nearly decade-long “War on Terror,” Kennedy argued on behalf of the importance of judicial review: “Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”14 For Kennedy, the key point was the vitality and applicability of the Constitution, even during crisis times: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”15
Scalia, always an advocate for the broad use of presidential and national governmental power in dealing with threats, argued in dissent that “the writ of habeas corpus does not, and never has, run in favor of aliens abroad.” Scalia took “judicial notice” that “America is at war with radical Islamists.” That said, he became particularly brutal toward Kennedy, the man he had been attacking personally in judicial opinions for so many years: “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”16
Scalia argued that by extending the habeas corpus rights to the enemy on the battlefield, federal judges might “impose a higher standard of proof (from foreign battlefields) than the current procedures require, [and] it would mean that the number of the enemy returned to combat will obviously increase.”17 In his view, what then transpired was not good for the safety of the 190,000 men and women fighting for America, and raised questions about the role of the judiciary: “What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless.”18 Thus, for Scalia, this “opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”19
Seeing this “inflated notion of judicial supremacy” as an exercise of an “irrational and arrogant” Supreme Court, Scalia concluded, based on his interpretation of “the text and history of the Suspension Clause,” that the majority had “no basis for our jurisdiction.”20 Instead, he added:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause. . . . It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.21
After verbally beating up Kennedy once again, Scalia had no time to rest.
• • •
At that moment, Scalia was writing his judicial magnum opus, creating a textbook example of how to decide a constitutional law case using originalism. The case of District of Columbia v. Heller dealt with the District’s Firearms Control Regulation Act of 1975, enacted in response to the soaring crime and murder rate in the nation’s capital. The regulation prevented people from owning an unregistered handgun while also barring new handgun registrations. It also required that all lawfully owned guns have trigger locks on them. This, according to D.C. resident Dick Heller, violated the Second Amendment. Heller, a security guard, wanted to own a handgun for protection in his home and raised the issue of whether such a regulation by the District of Columbia, a federally governed region, violated the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The rich history of the Second Amendment dates back to the fears by the British in the seventeenth century that James II would disarm them, the need for arms by citizen militias, like the colonial Minutemen who fought the British during the Revolutionary War, and a proposal by James Madison from which the amendment’s wording was taken.22 Scalia, who was not only a conservative but a hunting enthusiast, sought a way through this case to strike down the D.C. regulation using originalist analysis. Standing in the way of this task, though, were an existing Supreme Court precedent and the rules of English grammar.
For the man who called himself a “faint-hearted originalist,” arguing for two decades that he would try to avoid overturning long-standing precedents, the 1939 Second Amendment precedent, United States v. Miller, seemed to be squarely on point by upholding the power of the federal government to restrict the right to own guns.23 The case involved Jack Miller, a bank robber and moonshiner, who was arrested and convicted of transporting an unregistered sawed-off double-barrel 12-gauge shotgun from Oklahoma to Arkansas in violation of the 1934 National Firearms Act (NFA). Since these sawed-off shotguns, along with machine guns, which were also covered by the law, were also the weapons of choice for bank robbers such as John Dillinger, Pretty Boy Floyd, and Bonnie and Clyde, not to mention the gunmen in the St. Valentine’s Day Massacre that had spurred this law, Congress had limited the Second Amendment right “to keep and bear arms” by banning their interstate transportation.24
In writing a majority opinion upholding the law, ultraconservative Justice William McReynolds used what Scalia would later call originalism, citing the notes of the Constitutional Convention, the writings of British legal theorist William Blackstone, and early American and British history to argue that the “arms” borne by a person must relate to their use for general security in the “militia.” As McReynolds explained, “Ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”25 In short, he argued, since the military was not carrying sawed-off double-barrel 12-gauge shotguns into war, a citizen’s ownership of them failed the militia-related use test, meaning that people in Oklahoma who were traveling to other states had no right to carry them either.26
None of this posed any problem for Scalia, who was by now adept in manipulating his originalist theory to reach the result that he sought. Scalia’s version of grammar and history led him to interpret the Second Amendment much differently from his predecessor in writing for a five-justice majority in favor of Heller. First, he took issue with how McReynolds interpreted the structure of the words in the Second Amendment. As written, the Second Amendment has two parts. The initial clause reads, “A well-regulated Militia, being necessary to the security of a free State,” describing a collective right, with the second phrase “the right of the people to keep and bear Arms, shall not be infringed,” conveying an individual right. McReynolds had interpreted the first clause as modifying the second one, providing the reason for the right to own a gun. For him, the individual person’s right to own a gun must be seen as a collective right dictated by the use of that weapon in the service of the militia.
Like all children of the 1950s, young Nino Scalia had learned at P.S. 13 in Queens and Xavier High School in Manhattan how to diagram a sentence. But having learned as a college debater at Georgetown the art of reinterpreting a proposition to favor the side he was defending, the task before Scalia was routine. In writing his majority, Scalia became the debater rather than the grammarian in seeking to make the introductory portion of the Second Amendment play a much different role than McReynolds thought.
Scalia began his opinion by explaining that he would be interpreting the Second Amendment based on how it “was written to be understood by the voters; [because] its words and phrases were used in their normal and ordinary meaning as distinguished from [their] technical meaning.”27 Knowing that Heller’s Second Amendment gun rights could not be upheld if he limited his interpretation only to those weapons that would be used by “a well-regulated Militia, being necessary to the security of a free State,” Scalia explained why, for him, this initial clause was not a limiting phrase to the right to keep and bear arms, but was there to “clarify” the rest of the sentence: “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.” For support of this proposition, he cited an 1867 legal treatise, adding: “The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.’ ” Unexplained was how a rule presented in 1867 demonstrated Scalia’s “public understanding” of a 1791 constitutional amendment.
He had not yet answered, nor would he answer, two questions: Did the general public in the Founding period also read this sentence as he did? And, did the people in the Founding Era understand that the purpose of the amendment was designed to protect their right to retain all weapons as opposed to those used in a state militia? Seeking to bolster his case, Scalia resorted not to history, but to logic:
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause. . . . But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.28
Having dispensed with the first part of the amendment, he turned to the second, what he called the “operative part.” Here Scalia applied his textual and historical analysis to each portion of the “keep and bear arms” clause to argue that the arms ownership guarantee was a broad individual one, rather than a collective right: “ ‘Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else. . . . It in no way connotes participation in a structured military organization. . . . These provisions demonstrate—again, in the most analogous linguistic context—that ‘bear arms’ was not limited to the carrying of arms in a militia.”29
Scalia then argued that if the “right to bear arms” only “consist[ed] of the right to be a soldier or to wage war,” then “the phrase ‘keep and bear Arms’ would be incoherent. The word ‘Arms’ would have two different meanings at once: ‘weapons’ (as the object of ‘keep’) and (as the object of ‘bear’) one-half of an idiom. It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.”30 After examining the “textual elements” and “historical background” of the Second Amendment, Scalia argued that the operative clause protected only an individual’s right to bear arms: “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. . . . There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”31
Once he had finished his grammatical analysis, Scalia concluded on the basis of his reading of the state constitutions from the Founding period that “they secured an individual right to bear arms for defensive purposes.”32 For him, then, the Second Amendment was not safeguarding the existence of the group “militia” right, but rather the individual’s “right to self-defense.” In a kind of moving historical target, Scalia found his definition of the “right of self-defense” not in the Founding period but rather from the post–Civil War period. After acknowledging the gap in time from the ratification of the Second Amendment, he argued that as the American public “debated whether and how to secure constitutional rights for newly free slaves. . . . Those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern States. . . . It was plainly the understanding in the post–Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.”33
By recrafting the right to “keep and bear arms” into a “right to self-defense,” Scalia was able to forge a majority by locking in the votes of the Court’s two libertarians, Clarence Thomas and Anthony Kennedy, both of whom saw this right as the essence of the Second Amendment’s protection. Scalia did concede, though, that the Second Amendment did not confer an unlimited right, making it possible for a state to regulate this right: “Like most rights, the right secured by the Second Amendment is not unlimited. . . . Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms . . . [to] the sorts of weapons . . . ‘in common use at the time.’ ”34 So it was yet to be decided in battles between gun control advocates and the gun supporters, such as the National Rifle Association, whether there might be other types of arms that could be constitutionally excluded from the Second Amendment protection.
In dissent, Justice Stevens argued that there was “no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”35 For Stevens, the Miller precedent made gun ownership a collective security right because it was “both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption. . . . Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.”36
Based on his own version of originalism, Stevens drew from his historical interpretation of the text of the amendment and its tradition to argue that “the Framers’ single-minded focus in crafting the constitutional guarantee ‘to keep and bear arms’ was on military uses of firearms, which they viewed in the context of service in state militias.”37 He added that “so far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. . . . Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as ‘elevat[ing] above all other interests’ the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”38 Stevens made clear in this opinion how little use he had for Scalia’s pro-gun rights textual and originalist approach, mocking it in a footnote: “The Court’s atomistic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the elephant. . . . In the parable, each blind man approaches a single elephant; touching a different part of the elephant’s body in isolation, each concludes that he has learned its true nature. One touches the animal’s leg, and concludes that the elephant is like a tree; another touches the trunk and decides that the elephant is like a snake; and so on. Each of them, of course, has fundamentally failed to grasp the nature of the creature.”39
Hardly amused by this comparison, Scalia responded that “Justice Stevens flatly misreads the historical record.” He said that Stevens “assumes from the prologue that the Amendment was designed to preserve the militia . . . (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess. . . . Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.”40
With the announcement of the Heller opinion, Scalia had secured his claim as King of the Originalists. And he knew it, saying years later in an interview with National Public Radio Court reporter Nina Totenberg: “I think Heller is my legacy opinion insofar as it is the best example of the technique of constitutional interpretation, which I favor; that is to say, it is a good example of originalism, of going back and seeing what the meaning of the Second Amendment was at the time it was adopted. . . . I think it’s the most complete originalist opinion that I’ve ever written.”41 Using his textual and historical analysis, he had held together a close majority of the Court in his battle against the living, evolving Constitutionalists. As a result, all of the commentary on the case would be on his opinion and his version of the originalism theory.
• • •
In the summer of 2008, the legal blogosphere was Scalia’s domain once more as the internet filled with analysis of his Heller opinion. History professor Saul Cornell of Ohio State University wrote that “Scalia’s interpretive principle might best be described as the Cheshire Cat Rule of Construction—now you see the preamble, now you don’t. According to this approach, the preamble disappears during interpretation and only reappears if there is an ambiguity that needs to be resolved. While such a rule would be plausible if the Constitution had been written by Lewis Carroll, it seems hard to imagine the Founders embracing an Alice in Wonderland approach to constitutional interpretation.” For Professor Cornell, this form of reading violated Scalia’s own theory of originalism because it was “inconsistent with [British legal theorist William] Blackstone’s primary injunction that one must consult the words, context, subject matter, effects, or spirit and reason of the law when seeking to discover the intent of the legislator.”42
Another critical commentator was Stanford historian Jack Rakove, author of the 1996 Pulitzer Prize–winning Original Meanings. In commentary posted on Yale constitutional law professor Jack Balkin’s legal blog, Balkinization, Rakove argued, “The Scalia opinion seems materially defective to me for several reasons. The most important . . . is its explicit disdain for the legislative history of the Amendment, whether that is described in terms of the Convention’s framing of the Militia Clause, the public exchanges and ratification convention debates it sparked, or what we know of the progress of the Amendment itself through Congress. I understand that this position correlates with Scalia’s general skepticism about legislative history in statutory construction, but that does not alleviate my concern.” Rakove continued, “Scalia’s version of originalism/textualism, as applied in this opinion, seems oblivious to the most important findings that historians from Edmund Morgan (writing on the Stamp Act) on through [Bernard] Bailyn, [Gordon S.] Wood, myself, and others have argued over the last half-century: that this was a deeply creative era in constitutionalism and political thought, and the idea that static definitions will capture the dynamism of what was going on cannot possibly be true.”43 For Rakove and the nation’s other preeminent Founding Era historians, the meaning of the amendment had to evolve because a single “public meaning” of the ratification period could not reliably be determined given the available historical evidence.
Of these intellectual attacks against Scalia’s Heller opinion, one of the most visible and telling came from conservative Court of Appeals judge for the Seventh Circuit Richard Posner, writing in The New Republic.44 Posner sided with John Paul Stevens’s version of Early American history in holding for the collective “militia-based” ownership of guns theory: “Since a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. For then the militia would have no weapons, and an unarmed militia is an oxymoron.” If the militia depends on armed citizens to exist, for Posner that version of the right to “keep and bear arms” must be safeguarded. As he put it, “Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.”
Using his own form of originalism to read the Second Amendment, Judge Posner turned to Blackstone in arguing for a “loose construction” or a broad, expansive reading of the right. “The purpose of the first clause of the amendment, the militia clause, is to narrow the right that the second clause confers on the ‘people.’ ” Accordingly, Posner argued:
The reigning theory of legislative interpretation in the eighteenth century was loose (or flexible, or nonliteral) construction. . . . Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.
Indeed, Blackstone’s “loose construction” statutory interpretive approach had been used by British judges since the first century after the Magna Carta was signed in 1215.45
Posner argued that Scalia’s interpretation was “too dogmatic” because “the historical evidence is not as one-sided as his opinion suggests.” For Posner, “it leaves the impression that all that divided the two wings of the Court was a disagreement over the historical record. That was playing into Scalia’s hands.” Just as Jack Rakove, drawing from fellow legal historian Leonard Levy, had argued about Scalia’s historical technique twelve years earlier, Posner charged that
The majority (and the dissent as well) was engaged in what is derisively referred to—the derision is richly deserved—as “law office history.” Lawyers are advocates for their clients, and judges are advocates for whichever side of the case they have decided to vote for. The judge sends his law clerks scurrying to the library and to the Web for bits and pieces of historical documentation. When the clerks are the numerous and able clerks of Supreme Court justices, enjoying the assistance of the capable staffs of the Supreme Court library and the Library of Congress, and when dozens and sometimes hundreds of amicus curiae briefs have been filed, many bulked out with the fruits of their authors’ own law-office historiography, it is a simple matter, especially for a skillful rhetorician such as Scalia, to write a plausible historical defense of his position.46
And so, Posner concluded, “The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.”
Posner’s “law office history” charge particularly stung Scalia, who would later admit, “That article stuck in my craw.”47 And, just as he had so many times before, he knew exactly how to respond.