The limits of Scalia's 'originalism'...

Actually, it seems there are none. If it isn't written in the Constitution, it doesn't exist, even if it means barring discrimination by gender, Justice Scalia tells California Lawyer magazine in a Q&A piece titled "The Originalist":

Q: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?A: Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

This strikes me as a textual fundamentalism that actually mistakes the fundamental reality of what the text might say. Scalia (and most everyone else) reads into the text all the time, parsing intent or application of the Framers' words. Scalia in this interview also seems to elevate majority rule to the level of idolatry, in that there seems to be no room for judicial protection of the minority.When I read that Justice Scalia was going to address the Tea Party Caucus' "Conservative Constitutional Seminar" this month I winced, but then figured justices accept invitations all the time, and he could teach them a thing or two. (They need that many, at least.) Besides, Clarence Thomas' wife apparently had a falling out with her Tea Party organization, so the Tea Party needed at least one connection to the SCOTUS.Now I'm wondering what on earth he might tell them.H/T: Tom Diemer at PoliticsDaily

David Gibson is the director of Fordham’s Center on Religion & Culture.

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