“Scalia does have a philosophy, it’s called originalism. That’s what prevents him from doing the things he would like to do,”

– Justice Scalia in a speech to the Federalist Society

Thomas Jeffer- [330 U.S. 1, 12] son and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law. 11 In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions. Madison’s Remonstrance received strong support throughout Virginia, 12 and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous ‘Virginia Bill for Religious Liberty’ originally written by Thomas Jefferson.

–Judge Black, writing in defense of the notion of a separation of church and state in Everson v. Board of Education

On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the Members of the House of the Amendments which became the Bill of Rights, but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution. During the ratification debate in the Virginia Convention, Madison had actually opposed the idea of any Bill of Rights. His sponsorship of the Amendments in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and would satisfy those who had ratified the Constitution on the condition that Congress propose a Bill of Rights.(3) His original language “nor shall any national religion be established” obviously does not conform to the “wall of separation” between church and State idea which latter-day commentators have ascribed to him. His explanation on the floor of the meaning of his language–”that Congress should not establish a religion, and enforce the legal observation of it by law” is of the same ilk. When he replied to Huntington in the debate over the proposal which came from the Select Committee of the House, he urged that the language “no religion shall be established by law” should be amended by inserting the word “national” in front of the word “religion.”

– Judge Rehnquist, writing in opposition to the notion of a separation between church and state in Wallace v. Jaffe

Huh, look at that. Same issue, same reliance on the original intent, and completely different results. One could almost say that because history is so complex and contradictory when it comes to matters of intent and meaning that originalism is really just an excuse to go on a scavenger hunt through history to find the one or two nuggets that justify doing what you wanted to do in the first place.

Surely, Scalia himself, the great and wise jurist, the defender of the pure maiden Original Meaning, would always use the original meaning in exactly the appropriate manner. Surely

The second problem with Scalia’s use of originalism is that it is opportunistic. Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy, and his favored values. You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases. Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations. But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment’s section one, at least as originally understood by its framers. (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed. (See Jed Rubenfeld’s 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman’s Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them. The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it’s unclear how either Scalia or Thomas could have joined the Adarand decision.

I have said this before, but it bears repeating: there is nothing objective in originalism. Nothing. Considering the diversity of opinion among the Founders (some were radicals, some were reactionaries), history is a very poor guide, indeed, to the meaning of the Constitution. Support for almost any position can be found somewhere in some Founder’s history. The claim that originalism is objective is ludicrous. There is nothing objective about the selective picking and choosing of historical records, and the assigning of importance to such records. History is not a science, where adding Jefferson to Madison and subtracting the Federalist Papers always yields “5″. History is confusing, incomplete, ambiguous, and subject to interpretation. By deciding what parts of history deserve the most weight, judges are exercising as much if not more subjective judgment than those who interpret the Constitution informed by the notion that the Constitution was designed to promote individual liberty.

There is no objectivity in originalism. The historical record is so broad, and so conflicted, that any judge can find support for any position he or she chooses. Originaliam simply replaces analysis based on a guiding understanding of the meaning of the Constitution with a historical scavenger hunt that allows judges to pick up any old piece of Constitution related history they find lying around, dust it off, polish it up, and proclaim it to be the truth.