of the United States Supreme Court and the federal judicial system.He applied the “Page 99 Test” to his new book, Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon, and reported the following:
Page 99 provides only a limited idea of the book’s content and argument. The page comes in the middle of a long chapter surveying Justice Antonin Scalia’s jurisprudence on a wide range of constitutional issues. Specifically, it is part of a four-page discussion arguing that Scalia’s treatment of the Fourth Amendment was inconsistent and contradictory, and page 99 contributes to this argument by detailing an inconsistency in Scalia’s opinions involving the role of property rights in determining the amendment’s reach. The section shows that his opinions had little to do with any truly “originalist” analysis, and that they actually exemplified a non-originalist version of “living” constitutionalism. Indeed this short section concludes by pointing out that Scalia did not even attempt to use originalist reasoning in more than 80 percent of his Fourth Amendment opinions. The discussion on page 99 is representative only insofar as it exemplifies one of the book’s principal theses about Scalia’s constitutional jurisprudence. His opinions frequently ignored, twisted, contradicted, or flatly rejected the originalist and textualist methodologies that he promoted so vigorously and tirelessly.Learn more about Antonin Scalia and American Constitutionalism at the Oxford University Press website.
The page is not representative insofar as it does not directly contribute to any of the books’ other principle theses. Page 99 does not develop the book’s general argument that Scalia’s jurisprudence was shaped not by his theoretical proclamations but by his personal political and ideological goals. He sought to defend corporate power, private property, gun rights, the death penalty, and the institutional interests of the Republican Party, and he worked methodically to defeat affirmative action and other civil rights claims, abolish rights to abortion and gay marriage, deny the equal protection claims of women, and defeat the claims of consumers, employees, environmentalists, minorities, and tort victims. The consistency and coherence of his jurisprudence lay in the ways he used constitutional reasoning to advance those partisan goals, not in any consistent or disciplined application of originalist or textualist methodologies. Scalia was important primarily because he was, in fact, a leader–and the primary judicial spokesperson--for a distinctive and time-bound late twentieth-century political and ideological movement.
Most important, page 99 does not relate directly to any of the three general conclusions the book draws about Scalia’s overall significance in the history of American constitutionalism. First, the page does not advance the book’s argument that his originalist jurisprudence not only failed but that it also demonstrates that originalist methodologies are intrinsically incapable to producing the kind of “objective” conclusions he claimed. Second, it does not bear on the book’s argument that his jurisprudence illustrates–to an unusual and extreme extent–a fundamental characteristic of American constitutionalism, the fact that political and ideological values have necessarily shaped its course. Third, page 99 does not contribute to the book’s argument that, contrary to Scalia’s claim that originalism has largely and properly controlled constitutional law, the nation’s history shows that American constitutionalism has been intrinsically dynamic and that constitutional law has evolved over the centuries to adapt itself to new conditions and challenges. Scalia’s most important historical significance, the book concludes, is one of irony. His career and jurisprudence demonstrate–despite his impassioned insistence to the contrary–that American constitutionalism is a truly “living” enterprise.
--Marshal Zeringue
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