Ancestor Worship

Glen Newey

Fundamentalism about texts, legal or biblical, marks people of the book. The word, taken at its word, affords a rallying-point of last resort for societies whose bonds are otherwise watery. The Supreme Court judge Antonin Scalia, for instance, is an ‘originalist’ about law – he thinks that with texts like the Second Amendment, their meaning now is what a reasonable person would have taken it to be when it was enacted. Originalism can look quite like ancestor worship, though according to Scalia it is the only way judges can avoid interpreting law via their own prejudices.

That claim sounds odder after reading the Supreme Court judgment in DC v. Heller, which ruled unconstitutional a DC law regulating the private ownership of firearms. There Scalia devotes twenty tortuous pages to expositing the phrase ‘keep and bear arms’ as it figures in the Second Amendment, with riffle-throughs of Johnson’s Dictionary, which fail, despite his best efforts, to mask the fact that its meaning turns out to be what a ‘reasonable’ 18th-century pre-incarnation of Antonin Scalia would take it to be.

You might think the mention of militia in the prefatory clause made a difference. The First Amendment’s ‘Congress shall make no law... abridging the freedom of speech’ would be a rather different beast were it preceded by a clause such as ‘Speech being necessary to the security of a free state’, precisely because that would leave the door wide open to quashing seditious speech, among others. The amendment mentions militias to allow a reading that weakened the hand of the federal government against the founding states, a much-chewed bone in the Federalist and during the constitutional convention in 1787. There, as in Scotland after the Jacobite rebellion in 1745, militias were seen as a check on enslavement not just by foreign arms, but also central government – the reason republicans favoured them over a standing army. It’s a bit of niftily crafted ambiguity, where the ‘people’ in the first clause can refer either to the 101st airborne or musket-toting pigmen in the boondocks as voiced by the National Rifle Association’s ‘Wacko’ Wayne LaPierre.

But then ‘the people’ has always been a bit of a floater. Scalia claims to be a (small-‘d’) democrat. But, since law doesn’t read itself, judges such as Scalia have to construe or ventriloquise what the people may have meant by passing it – which, in this case, means a congeries of late 18th-century white male plantation and slave-owners. Even this fails to work in its own terms. In McDonald v. Chicago (2010) the Scalia court held that the Second Amendment applied to states as well as the federal government via the so-called ‘incorporation’ provision of the 14th Amendment’s due process clause. That is taken to mean that the Bill of Rights provisions are retrojected into state law, so that state legislatures may not enact firearms law more stringent than what’s allowed by the Second Amendment. But the 14th Amendment was enacted only after the Civil War, in 1868. So, accoutred with the incorporation provision, originalism’s reasonable man is not merely an 18th-century farmer with an idiosyncratic understanding of ‘militia’: he also, in ratifying his contemporaries’ legislative acts, relies on a postbellum constitutional tweak enacted by their great-grandchildren.

Original, indeed. As Paul says in Corinthians, the letter kills, and in this case we can safely take him literally.


  • 25 December 2012 at 2:09pm
    Chunter says:
    "The Supreme Court judge Antonin Scalia ..."

    That is the US Supreme Court? At first I assumed at you were referring to the UK one.

  • 25 December 2012 at 6:07pm
    cwlh says:
    Funny. I thought it meant the Canadian Supreme Court. But then, I live in Canada.

  • 26 December 2012 at 5:30am
    Colin says:
    Oh look, a pedantic comment on the LRB Blog!

  • 26 December 2012 at 5:32am
    Colin says:
    I think you'll find it's a comment on a post on the LRB blog.

  • 26 December 2012 at 10:47am
    foxinthebox says:
    perhaps, then, originalists should construct the meaning of the second amendment to only allow arms equivalent to weapons that would have been available in 1787 - muskets and pistols.

  • 27 December 2012 at 10:15am
    Glen Newey says:
    Oddly enough, Scalia does address that objection in his judgment in Heller, only to dismiss it as 'frivolous'. He doesn't consider whether an interpretation of the 2nd amendment flexible enough to draw within its scope semi-automatic weapons that can fire 60 rounds a minute might also permit some variability in the categories of person whom those drafting the amendment thought should be permitted to use them. But then the very concept of an amendment makes originalism problematic.

  • 28 December 2012 at 6:24pm
    Bob Beck says:
    Scalia's fundamentalism leads him in some strange directions, as fundamentalism will. In a debate a few years ago with a judge of the Supreme Court of Canada, he mocked the idea that judicial interpretation could protect minority rights. Only constitutional change accepted by the majority could manage that, he said (thinking possibly of the amendment to the US Constitution ending slavery), adding that "What democracy means is that the majority rules. If you don't believe that, you don't believe in democracy."

    A thuggish enough proposition, and expressed with characteristic thuggishness: that the rights of minorities have to depend on majority acceptance. But also completely at odds with things like his support for the right [sic] to own guns. Gun owners are still a minority in the US, though a large one; and it's only very recent (re-)interpretations of the 2nd Amendment that have enshrined an individual right to weaponry.

    But then, Scalia would likely argue that previous decades of 2nd Amendment jurisprudence went against proper originalism. And maybe -- who knows? -- that most Americans *should* own guns.

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