Education law may seem to be an unusual vehicle for considering Scalia’s constitutional approach. Scalia’s approach to legal interpretation relied first and foremost on the text of the document to be interpreted, and the text of the Constitution contains nothing specific on the subject. Yet thinking about schools requires attention to political fundamentals—freedom of speech , free exercise of religion, equality of opportunity , federalism , and the proper role of the expert . Scalia wrote at least 37 opinions—majority, dissenting and concurring—on cases that bore on the workings of the nation’s education system. That raises many questions, which are explored in the first part of this collection. What is his understanding of the Equal Protection Clause ? How did he reconcile a focus on the original text with his respect for judicial precedent? When did he defer to the elected branches of government, and when was he willing to find their decisions unconstitutional? Was he results-oriented , or did his objective method drive his conclusions?
Scalia’s more general teachings and pedagogy are explored in part two. What larger philosophical understanding sustains textualism and originalism? Why was Scalia so skeptical of the scientific expert ? Why did Scalia write with such eloquence and directness?
Rugged Originalism
In this chapter Paul Peterson offers a general introduction to Scalia’s approach to constitutional law by contrasting Scalia’s rugged originalism with three earlier approaches that had great influence on judicial decision-making: (1) the “naïve” originalism of the nineteenth century, (2) the legal realism of late New Deal justices, and (3) the living Constitution doctrine guiding a substantial segment of the Court from the early 1960s to at least the mid-1980s, with many recurrences thereafter. Naive originalism pervaded Court thinking well into the late nineteenth century and beyond. Justices declared laws of the states and of Congress unconstitutional whenever they identified a conflict between those laws and the intentions of those who wrote the Constitution. In response, legal realists , who accused the Court of acting on behalf of dominant economic and social interests, urged it to exercise judicial restraint and defer to the will of the legislature. That point of view came to dominant court thinking from the late New Deal until the transformative Brown decision in 1954. But jurists since then have broadened the discretion available to their own branch of government by identifying a “living constitution ,” which is given new meaning by judges who presumed to be capable of discerning the Constitution ’s current meaning. Scalia countered that view by constructing a more rugged originalism . He combined textual analysis with a search for the document’s meaning among those who originally read it. Further, he allowed for social and political change by deferring to the will of elected officials except in cases where their decisions violated basic values the Constitution was designed to sustain. And he deferred to well-established judicial precedents unless they, too, were serious violations of constitutional fundamentals. In other words, Scalia’s originalism is rugged enough to survive the turmoil of an ever-changing democratic republic.
But does the complexity of Scalia’s thought leave him no more governed by principle than those who act according to the living constitution ? Was he not as policy-minded as those with whom he disagreed? That question draws a variety of responses in the remaining essays. When it comes to the Equal Protection Clause , says James Ryan, Scalia interpreted original meaning in ways consistent with his policy preferences, not with the clause as originally understood. “In cases involving the use of race or gender in student assignment or admissions, Justice Scalia was faithful neither to originalism nor to precedent.” The authors of the Fourteenth Amendment were the same people who authorized the Freedman’s Bureau, which built schools in the South for the sole purpose of enhancing black education. Clearly, they expected the Equal Protection Clause would promote the welfare of those who had suffered from discriminatory practices in the past. They did not intend the Constitution to be blind to racial distinctions. A proper reading of original intentions compels the Court to intervene not only where schools are legally segregated but also when it is necessary to promote integration for its own sake.
In “The Dilemma of a Conservative Jurist,” R. Shep Melnick finds value in Scalia’s commitment to a racially blind constitution. The distinction between “benign” and “malignant” racial classifications is not nearly as clear as is often claimed, he says. In a multi-ethnic country, the use of racial classifications by school officials may produce disturbing results—such as discriminating against some minorities in order to help others. Further, racial classification inevitably encourages racial thinking—not exactly what those who litigated Brown or supporters of the Civil Rights Act had in mind. Still, Scalia’s efforts to balance judicial restraint against textualism do not always have happy results. At times the justice found himself in odd dilemmas when he sought to strike a balance among the various components of his rugged originalism . “Reconciling [Scalia’s] multiple commitments–to ‘text and tradition,’ to judicial modesty, and to respect for federalism , separation of powers, and political accountability—proved difficult, if not impossible, in practice,” Melnick concludes. “In deciding particular cases and controversies he approved policies he never would have voted for if he had been a legislator or initiated had he been an administrator.”
Few clauses of the Constitution have been as wrenched as far from their original meaning as the First Amendment ’s ban on the “establishment of religion.” Justice David Souter argued that “Jefferson necessarily condemned what, in modern terms, we call official endorsement of religion. He accordingly construed the Establishment Clause to forbid not simply state coercion, but also state endorsement, of religious belief and observance.” 1 Souter’s account of the original meaning of the Establishment Clause is assailed in Michael McConnell’s “The Secret History of School Choice,” which explores state and local practices in the late eighteenth and early nineteenth century with a thoroughness that Scalia would have applauded. McConnell finds that the First Amendment did preclude the establishment of the Church of England or any other denomination as a national religion, but it was nonetheless generally understood that local schools, even when publicly funded, would provide instruction in religion. Only later do Protestants oppose public support for the religious schools built by Catholic immigrants arriving from Ireland, Germany, and elsewhere. More radically, McConnell hints that it is the government school monopoly on public support—taxing everyone for the propagation of values-laden curriculum approved by the majority—that most resembles the establishment of religion. School choice, on the other hand, dis-establishes uniform belief systems in a manner that is quite in accord with First Amendment requirements.
The essays in Part II place Scalia’s originalism within a larger philosophical tradition. In “The Foundations of Originalism,” Mark Blitz says Scalia regards originalism not as dogma but as a “rule of thumb.” If jurists respect the meaning of the Constitution , they will honor the most precious of the values, traditions, and practices of a democratic republic. In Blitz’s words: “Original meaning , together with [some] attachment to precedent, and to common and continued practice [or tradition] in considering the law’s proper scope, is, for Scalia, the proper guide to judicial decisions.” In Virginia , 2 Scalia expresses a commitment to values deeper than devotion to a text for its own sake:
In my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection , not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees…[W]hatever abstract tests we may choose to devise, they cannot supersede–and indeed ought to be crafted so as to reflect–those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.
Blitz admits that Scalia’s “principles of interpretation… almost always permit him to reach the result he otherwise desires” but that is only because the “Constitution ’s original meaning , on which Scalia’s views purportedly rest, is more favorable to sound government than are later views.” He concludes that “Scalia’s education opinions are consistent with his ‘originalism,’ and that originalism is a sensible but ultimately limited mode of constitutional interpretation” that needs to be justified by basic philosophical principles.
In her discussion of “Scientific and Legal Expertise ,” Amy Wax places the thought of Antonin Scalia solidly within the tradition of such conservative thinkers as Friedrich Hayek, Alasdair Macintyre, and Michael Oakeshott. Hayek distrusted “managerial expert s exerting authority through distant administrative centers of power.” MacIntyre said the social sciences had demonstrated a “signal failure… to discover ‘any law-like generalizations whatsoever.’” Michael Oakeshott celebrated “what has grown up and established itself unselfconsciously over a period of time” over the “consciously planned and deliberately executed.” Scalia’s thinking fits well within this tradition. He prefers “the traditional practices of ordinary people to expert -enunciated certainties.” He doubts university administrators when they claim diversity is necessary for learning. He is dubious of social workers’ claims to special...