Antonin Scalia and Modern Cosmology: How originalism became the only legal theory

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Antonin Scalia “is the justice who has had the most important impact over the years on how we?think?and?talk?about the law.” - Elena Kagan

In terms of how people?talk?about the law, that impact comes from Scalia’s style of jurisprudence, referred to as?originalism, or the idea that we need to interpret the law in light of the public meaning of the words at the time they were adopted.

Of course, the meaning of words changes over time, as many liberal judges have pointed out. And of course, our moral frames shift over time, as many more liberal judges have also pointed out. But, as Scalia has made clear, his point of view is that the role of the judge in society should not be to interpret the law in light of their morals; this is the role of legislators. In allowing for the constant rereading of statutes, judges become legislators, and the courts become political. If you want to change the laws, Scalia would say, “Change the fucking laws: make a constitutional amendment or pass new legislation, but certainly don’t post-modernize and subjectively alter the US Legal Code!” Without a common legal reality, all is lost.

Today the popular understanding of the court is that there are sort of like, liberal or progressive justices, and then Scalia-esque conservative judges who are originalists and read these laws in some old wooden way. Except, that’s not entirely true.

“We are all originalists now.”

Paraphrasing Ronald Dworkin, “We are all originalists now.” This includes the justices that we commonly think of as liberal justices. Gone are the days of interpreting the law in light of?philosophy. If you are going to be a serious lawyer in the United States today, you must interpret the law in light of?history. For instance, Justice Stevens’?Citizens United?dissent was a liberal originalist argument. This is why Kagan said that Scalia “is the justice who has had the most important impact over the years on how we think and talk about the law.”

Regardless of the way you read or interpret history—a progressive path of liberation driven by grassroots communities or a static struggle for dominance driven by great men—the effect is the same: today's law hinges on history, not on philosophy. History is the primary matter of concern that holds weight and authority when judgments are cast. Kant’s idealism does not. History, not philosophy, has become the game.

This is also true in today’s popular imagination. The often warped debate about critical race theory in schools is not about the theory of critical race theory or about the philosophy of equality versus inequality; it’s about how to interpret history and how those interpretations should be communicated today. The history (slavery happened) and moral philosophy (it was bad) are settled. What is not settled is what that history says about the (un)changing nature of the United States as a national organism.

On one hand, the history of slavery could mean that the nature of the United States is as a naturally and irrecoverably racist nation. On the other hand, the history of slavery in light of where we are today could mean that the nature of the United States is one of constant progress and improvement, clearly always on a path to bettering itself. The first interpretation could mean a radical politics of tearing everything down, while the second could mean a kind of status quo centrism.

The question today is why history has become so important in our legal system and in our popular politics. This is because in our modern common sense cosmology, history has become nature, and nature still holds an intoxicating authority over our sense of reality.

Nature and history are now one thing.

It’s almost impossible for us to imagine a world without historical documents. Imagine school without history class, one in which recent oral histories are relatively intelligible, but the further back in time you go, the more abstract and mythologized they get. And without historical documents, originalism does not exist.

As has been pointed out, the idea of “nature as a machine,” as some still sort of latently think of it today, was not possible until machines (pulleys, wheels, pumps) became commonplace in life in about the 16th century. The sort of godly-divine clockmaker analogy, where God sets everything on course at the beginning, doesn’t make sense if people don’t know what a fucking clock is.

The same is true for our current sense of nature, the idea of “nature as history,” which:

“could only have arisen from widespread familiarity with historical studies, and in particular with historical studies of the kind which placed the conception of process, change, development in the center of their picture and recognized it as the fundamental category of human thought.”

This widespread familiarity with history didn’t happen until the 18th century. History is nature, right? Doesn’t it feel natural? Like, wasn’t Nixon president at one point?in nature? Didn’t the passenger pigeon exist at one point?in nature?before going extinct? Years ago, I remember reading an account from Thomas Jefferson of naturalist debates about where all the elephants had gone in North America. Everyone was finding elephant bones in their backyards (they were mammoth bones), and so the elephants must just be out there a little further west. It’s hard to explain the evidence of an extinct animal if you haven’t yet come up with the idea of extinction.

We know about Richard Nixon because there are pictures of him, documents, videos, and libraries dedicated to him. We know about the passenger pigeon because there are measurements, stories, drawings, and even dead ones in the Smithsonian. We know for sure that passenger pigeons existed in nature because there is enough historical evidence to prove it. However, this knowledge is based entirely on historical evidence. At some point belief becomes knowledge, and passenger pigeons leave the category of the made up and enter the domain of reality.

This is of course despite the fact that literally zero people alive today have ever seen a living passenger pigeon or their swarms that blacked out the sun. Nixon and passenger pigeons are both things that happened in history and, by extension, in the reality that our modern cosmology, which uses history as a source of truth, treats as natural. These things happened?in time, not?before time,?in nature, not?outside of nature.

History dissolves the ability to stand outside of nature, and thus evaporates the possibility of the sublime.

Things that happen before time, outside of the historical or natural gaze, are by definition self-evident. This was the claim to power that most aristocratic classes in Europe used to naturalize the feudal social structure. This is largely also how indigenous communities make powerful claims to their indigeneity. If the sublime comes from mystery and distance, history makes that obscurity nearly impossible. Without a written account of history, maybe nobody remembers when the aristocracy came to power? Standing outside of history and thus nature, the feudal structure cannot be challenged. It just is.

There is a reason that the French Revolution happened at the exact historical moment when there emerged widespread familiarity with historical studies. As history sucked the aristocracy into it, they fell from the heavens down into nature with the rest of us. Once there, the mobs gathered. History and nature are ultimately universalizing. Everything in nature is contingent and ecological.

The reason Darwinism was such a threat to the church was not because it showed that we were evolved from apes. It was that it showed that there was no escaping nature, no time before time, no Genesis, and no place for some being to exist outside of nature and history and thus rule over it. Evolution undermined the church’s source of self-evident power in the same way a familiarity with history undermined the French aristocracy’s power in the lead up to the Revolution. Everything now, leveled with history and nature, becomes contingent.

History naturalizes the nature of things.

In his masterpiece,?The Idea of Nature, Collingwood says that “history is our modern cosmology.” It is almost so basic to our worldview that it feels stupid to say that what is natural, real, our common reality, objective, is history. When I read the wonderful historical biography of Alexander von Humboldt called?The Invention of Nature?and hear of his travels in South America in the late 1700s, I feel as though I’m hearing something that’s true. Well researched history naturalizes nature.

The first slaves landed in North America in 1619 in Jamestown, Virginia. That happened in history and thus nature, or in nature and thus history. Do you feel that? Am I insane? The authority that history has today in our modern cosmology in determining what is real is unparalleled.

Would it be destabilizing for me to suggest that the first slaves in North America landed in 1000 AD with Leif Erikson? Would that destabilize the relevant nature here? The truth is no, probably not, because the thing, organism, or object that is of concern when the year 1619 is invoked is the nature of the social organism we call the United States, which has nothing to do with the Vikings. The history that naturalizes the nature of a thing is the history that is relevant to it in space and time. The Vikings were 600 years too early, and also in Canada, and thus are not relevant to the nature of concern in the 1619 Project. But all history today, given our modern cosmology, is not a claim about history; it’s a claim about nature, and often about the nature of something: a person, a country, a conflict.

Originalism is the legal science of history, and thus a legal natural history, and thus a kind of legal natural science.

The reason that originalism has taken hold in the legal profession is that it is the legal application of our modern cosmology of history as nature. Historical claims ultimately hold more broad and intuitive power today than any other type of knowledge. If we want to call an institution racist, we don’t show the data from the past few years of inequality (maybe we do, but no one cares), we tell its history.

In our modern cosmology, one in which history is given common-sense authority, Scalia flourished. “While he and his army marched through the archives, rifling through documents on the right to bear arms, the commerce clause, and much else, the legal left remains ‘confused and uncertain,’ in the words of Yale law professors Robert Post and Reva Siegel, ‘unable to advance any robust theory of constitutional interpretation’ of its own.” Thus, in matters of humanness, history takes on the same amount of authority as do the natural sciences: it is, as a practical matter, the best knowledge we’ve got.

Today’s game is history, not philosophy. When the liberal Justice Stevens wrote his?Citizen’s United?dissent, he did not open it by saying that it is obviously bankrupt neoliberal philosophy to suggest that corporations should be given the same rights as individuals; he opened by saying “Let us start from the beginning” before making an historical argument about why the original right of free speech did not apply to corporations.

Originalism will win as long as we all believe in a modern cosmology that sees history as real. In past cosmologies, for instance, it was sufficient to say that “God mandated x.” Today, the best way to make an authoritative historical argument is to provide documentation, and the bigger the decision, the more history matters.

Most legal cases aren’t big and don’t invoke centuries of history. Thus, most cases rely on the authority of science, not history. To bring about an air quality concern in a marginalized neighborhood requires air monitoring, which requires some kind of technology to sense the air quality and some kind of statistical system for analyzing the data. We treat what the air quality monitors say as a natural fact, consistent with the way we treat an historical fact as an historical fact. The common sensibility and authority over knowledge that science, technology, and historical documentation provide is modern cosmology. It is our modern sense of nature.

Any legal system must stabilize itself through a common sense of authority. For instance, it is just not legitimate anymore in court to make theological arguments. Legislators do this for propagandistic purposes, but you cannot in the courts. It is totally coherent for a legislator to say that they are anti-abortion “because God said so.” It is a deeply anachronistic and withering moral worldview, but it is a moral worldview. And yet the truth is that this moral logic does not hold water in the United States court system.

If you want to win in court, the game today is history, and that’s because history has become nature.