Antonin Scalia once answered my question and drew a laugh from the audience. But that’s ok. The laughter was directed at someone else, and Justice Scalia was wrong.
Some years back, in need of money, I sacrificed part of my summer to teach AP American Government in the Junior State of America summer program in Washington, D.C. One of the highlights of the program was lectures by various government officials, and on one of those days we trekked down to the Supreme Court to listen to Justice Scalia.
At some point in his talk Scalia mentioned that everyone should read the Federalist Papers, because that’s how we know how to interpret the Constitution. Having talked about the federalists and anti-federalists in my class, I leaned over to one of my students and and whispered, “Ask him if we should read the Anti-federalist Papers.”
My student raised his hand, Scalia called on him, he asked the question, and Scalia responded, “The anti-federalists? They lost!” And everyone laughed at my poor student.
But Scalia was wrong, and wrong in a disturbing way for a man who claimed to be an originalist. The anti-federalists, it is true, did not stop the Constitution from being ratified, but they did help shape public understanding of the Constitution, and most importantly, they were the driving force behind the adoption of the Bill of Rights. A bill of rights was the price to pay for getting the Constitution ratified, and the federalists paid it. Herbert Storing, the great constitutional historian and editor of The Complete Anti-Federalist, said that the anti-federalists were equally deserving of being called Founders of the Republic.
The Federalist Papers, as critical as they are, were written to explain, defend, and promote a Constitution that lacked the current Bill of Rights. In fact in Federalist 84 Alexander Hamilton argues against a bill of rights.
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta… It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
The Federalist Papers, then, are no real guide to interpreting the Bill of Rights, because they refer only to a Constitution that lacks one. It is the anti-federalists who make clear to us the purpose and meaning of the Bill of Rights.
There is one bit of guidance, though, in Hamilton’s argument, when he says that bills of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He sees this as a danger, and the clear implication is that properly understood, we should not see the Bill of Rights as an exclusive list of rights; that the absence of a mention in that list does not mean the absence of a right. Madison and the First Congress tried to mitigate this danger with the 9th Amendment, but Scalia famously disliked that Amendment, claiming it was outside the purview of the courts.
Scalia not only misunderstood the role of the anti-federalists, and not only misunderstood the limitations of the Federalist Papers, but given the one a clear statement in those Federalist Papers–which he claimed were how we understand the Constitution–about bills of rights, he ignored it.
There have been a number of articles written about Scalia’s interpretive incoherence. I generally agree with them all. Scalia’s textualist originalism was a pose, a persona, employed primarily as a marketing tool for the Scalia brand rather than as a serious tool for constrained legal analysis. Anyone who doubts this need look no further than Gonzales v. Raich, where Scalia ignored his own prior originalist arguments about the limits of the interstate commerce clause so he could uphold federal regulation of marijuana grown for personal consumption. But brand identity is often far more powerful than the underlying reality, in large part because it is more comforting and less challenging. I don’t expect conservatives to admit to, or even privately recognize, that Scalia is largely a myth, because conservatives are no more likely than anyone else to relish the discomfort of seeing past their favorite brand images.