ACSBlog: The Blog of the American Constitution Society

Doug Kendall & James Ryan argue in a recent article that conservatives beat progressives in public debates on the Constitution by simplifying reality:

For more than a decade, conservatives, led by Scalia, have offered a simple and compelling recipe: Follow the text of the Constitution. Where the words of the document are unclear, consult history to determine the original understanding of those words. Apply that original understanding to the facts of the case, and presto: The right result will pop out. As Scalia likes to say, constitutional interpretation should be "easy as pie." The benefits, moreover, carry far beyond individual cases. According to Scalia, this approach ensures that politics never enters constitutional law.

Liberals have long known that Scalia does not always practice what he preaches. In Scalia's hands, the Founding Fathers strangely presaged the present-day Republican Party platform with remarkable precision. But, while liberals have grumbled in classrooms and academic journals about Scalia's flamboyant mix of sanctimony and hypocrisy, he has faced only one real combatant with the intellect and megaphone to give him a fair fight: Justice Stephen Breyer. In his book, Active Liberty, Breyer spells out his own approach to judging. He has also engaged in public debates with Justice Scalia about constitutional interpretation.

Breyer is an extremely intelligent, lively, and thoroughly decent man. He is also an excellent and largely nondoctrinaire justice. But even those rooting for Breyer, like us, would have to concede that Scalia has won their public matches.

These triumphs can be attributed, in no small measure, to style. Scalia talks in hard-hitting sound bites, Breyer in erudite paragraphs. While Scalia launches blistering criticisms of Supreme Court liberals, Breyer is calm, restrained, and unwilling to challenge Scalia on his rulings in particular cases.

But, more than anything, Breyer has lost these debates because of the terms upon which they were fought. As Scalia describes his "easy as pie" originalist recipe, you can hear the exasperation pour out of Breyer. Judging is a lot more complicated than that, he sighs. Texts are frequently ambiguous. (When he once began to ruminate on the many possible meanings of the word "other," Scalia interjected that he thought the meaning of "other" was pretty clear.) History is equally malleable. Thus, Breyer explained, he looks to other factors, including the real-world consequences of particular rulings. It is intellectually persuasive, but it also leans into Scalia's counterpunch. Scalia retorts that consequences are in the eye of the judicial beholder and liberal justices tend to bend their evaluations of the "real world" to fit their political preferences.

Kendall & Ryan add, however, that progressives can take a page out of Scalia's playbook:

Of course, the Constitution's text and history does not line up perfectly with a progressive agenda. Constitutional text and history, moreover, will not provide precise answers to many questions confronted by courts. But, faced with these complications and uncertainties, progressives would do well to follow Scalia's lead. In public debates over constitutional interpretation, Scalia keeps it simple. Sure, he says, sometimes I have to follow precedent. Sure, he admits, sometimes text and history aren't so clear. But those are details. Don't let them distract you: I like a rock-hard Constitution, plain and simple, and that Constitution binds me as a judge.

[Progressives] ought to talk about their own constitutional vision. They can eschew terms like originalism, if they don't like its baggage. But they should say something similarly evocative: "I want judges who are accountable to the Constitution, not the Democratic or Republican platform." They should be prepared to explain what they mean by constitutional accountability, and they should provide examples of where conservative judges have violated this mandate. They should talk about the Constitution and its history, but resist the impulse to discuss the hardest cases first and avoid getting bogged down in the details of philosophy. They must recognize that there is a big difference between defending a constitutional vision and deciding a case. The progressive failure to grasp that difference is precisely why they've been losing these battles.