Dorf on Law: Justice Scalia's Legacy as Irony: Reviewing Ed Purcell's Antonin Scalia and American Constitutionalism

Dorf on Law: Justice Scalia's Legacy as Irony: Reviewing Ed Purcell's Antonin Scalia and American Constitutionalism

By Eric Segall

"The most fundamental significance of Scalia's career and jurisprudence lies in the way and extent to which they illustrated the changing, dynamic, and inherently goal-and value based nature of American constitutionalism itself, its truly living nature."

Justice Scalia used to tour the United States arguing that the "Constitution is Dead, Dead, Dead." He detested what he saw as the judicial lawlessness of the Warren/Burger Court's eras and he claimed to follow a different path devoted to the study of text and history, not the imposition of value judgments by a "committee of nine lawyers." 

Yet, when Scalia's thirty years of jurisprudence are examined carefully without the trappings of the late Justices' barbs, quips, and talking points, it turns out, as Professor Ed Purcell shows in his new book, "Antonin Scalia and American Constitutionalism," that Scalia's legacy demonstrates that he could no more avoid living constitutionalism than any other Justice. For all his unyielding rhetoric about originalism as the only true method of constitutional interpretation, Scalia's career shows that pluralistic decision-making was the true hallmark of his judicial method.

This is not news to most academics who have studied Scalia, but Purcell's book is a wonderfully comprehensive and devastating critique of Scalia the Justice. In time, I hope this book play a major role in dispelling the myths surrounding Justice Scalia so that we can stop pretending this man was a principled or even honest Supreme Court Justice.

Purcell makes it clear at the start that he is not writing a biography of Antonin Scalia the man. Rather, this book takes seriously Scalia's constitutional law and statutory interpretation jurisprudence and examines that case law with a probing, smart, microscope revealing its too-many-to-count flaws and inconsistencies. Scalia the man is only relevant to how his personality and upbringing obviously affected his decision making. Despite Scalia's protestations to the contrary, his Catholic, rule-based upbringing along with his love for hunting and all things guns, as well as his penchant for the singular authority of a unitary executive, all deeply affected his Supreme Court opinions. Values, not text or history, are they keys that unlock Scalia's judicial career.

Early in the book, Purcell says the following about Scalia (p.49):

Scalia believed wholeheartedly in the death penalty, market economics, limited government, the centrality of religion, the right to possess firearms, and a broad set of values he considered 'traditional.' He was adamantly opposed to abortion, gay rights, affirmative action, and a right to assisted suicide. In his mind two truths were beyond question: His position on each of those issues was morally right, and on each of those issues the Constitution was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.

The remainder of this wonderful book is a step-by-step dissection of Scalia's opinions, showing how the Justice manipulated or ignored text and history to reach the policy results he thought best.