Conservative judges like to say that they’re not activists; they defer to the legislator. Their interest is legal, political, and social conservation: preserving the will of the people. Yet the career of Antonin Scalia, who died on February 13, demonstrates that the most conservative judges are spectacularly more disruptive, to use the modern jargon, than any “social engineer” from the judicial left.
Consider Scalia’s most notorious judgment, District of Columbia v. Heller . His biographer, Bruce Allen Murphy, tells us that Scalia J. considered this opinion, for a five-to-four majority, his “judicial magnum opus.” To stem rampant gun crime, the district had amended its Firearms Control Regulation Act to ban handguns from its jurisdiction. D.C. resident Dick Heller objected, tasking the U.S. Supreme Court with interpreting the Second Amendment to the U.S. constitution: “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.” Any reasonable, grammatical reading of this provision takes the second clause as dependent on the first. A middle school student of average intelligence would read the amendment to say that, to protect their democratic interests, Americans have a constitutional right to an armed militia.
Scalia J., however, was an ardent gun enthusiast and hunter, and his trademark “original meaning” approach to jurisprudence worked – in its literally conservative way – backwards. You choose the result you want, then scour dictionaries, legislation, and law treatises of the legislation’s era to cobble together bits and bobs that support your reading, on the bizarre pretext that this demonstrates how voters would understand the statute. Here, Scalia J. said the business about the militia was simply a “prefatory” clause, and the subsequent “operative clause” did not depend on it. The militia was just one reason Americans could keep and bear arms. The right was unqualified, never mind how reckless that would have seemed in 1791, when the amendment took effect, let alone how lunatic it is in an age of Kalashnikovs and rocket-launchers.
This is not to say that looking to the original understanding of legislation – and particularly of a constitution – is unhelpful. Such an approach is an important tool in statutory interpretation, and when used dispassionately, without an agenda, it really can help curb judicial ADHD amid the fruit of the living constitutional tree. Conservative activism such as Scalia’s, however, can be at least as pernicious: it tends to stunt the tree in a sort of zombie state, a living death.
Musicology provides an interesting case study of this. In their 1991 essay “Law, Music and Other Performing Arts,” J. M. Balkin and Sanford Levinson do not mention Scalia J., and refer only in passing to “originalist” jurisprudence, but they use Beethoven’s first piano concerto to illustrate similarities between interpreting law and interpreting music. The pianist Charles Rosen, they explain, has argued that a particular note in the concerto should be an F-sharp, even though Beethoven has written it as an F-natural. The piano was evolving in Beethoven’s time, but when he composed the piece there was no higher note on the keyboard than the F-natural. “To be sure,” the authors write,
Beethoven might have written “aspirationally” and composed what, though impossible under current [i.e., existing] conditions, could nonetheless be aspired to under some future imagined state. Thus Rosen writes of a piano sonata in which Beethoven “asks for a successive crescendo and diminuendo on a single sustained note,” even though “the instrument that can realize this has not yet been invented.” But at least this suggests that Beethoven was capable of envisioning the possibility of radical transformation regarding piano design and wanted to signify an intention should those possibilities ever be realized. What, then, does the performer do with the F-natural, where Beethoven appears instead to have acquiesced to the limits of the instrument?
…[T]he expansion of the keyboard happened only shortly after the composition of the first concerto; high F-sharps soon were available to both composers and performers, as exemplified by Beethoven’s own use of this note in a number of subsequent compositions, including … a cadenza meant to be performed as part of the first concerto. He did not, however, return to the initial composition and physically change the notation of the earlier F-natural, in spite of an announced intention, in Rosen’s words, “of revising his early works in order to make use of the extended range.” What, then, is a performer to do when she comes to the measure in question? Should she feel bound by the “plain meaning” of the written score, which displays the F-natural, or ignore it and play what Rosen, a gifted pianist, calls the “obviously” preferable F-sharp?
A true originalist would say that if the performer is interested in an “authentic” performance, the answer is clear. Once the expanded keyboard was available, Beethoven wrote music using the F-sharp, including a cadenza for the concerto in question. He likely added the note to older works, but not to this concerto. Therefore, a performer acting “legally” should play the F-natural, not what sounds “better” to her modern ear. While the higher note might “do justice” to the piece and its modern audience, such justice ultimately is the domain of the larger public – the commonwealth of serious scholars, musicians, and listeners, not the individual interpreter. This is true originalism, as contrasted with dictatorial political activism disguised as conservative respect for democratic principles, twisting interpretation to a desired end. Aspirational justice is a matter of evolution for the legislator and the people, building consensus, working with the constitution as a living document, singing with the times.
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