Jeffery Toobin notes another way Justice Antonin Scalia’s bizarre dissent over striking down most of Arizona’s SB 1070 went off the rails:
[W]hat authority did Scalia cite for his broad conception of the role of the state? He went back into history to examine the role of states in policing immigration. He pointed out that
In the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.
It’s worth pausing to remember what kind of immigration the states (especially the Southern ones) handled in those bygone days; much of it had to do with slavery, of course.
Yes, one of Scalia’s justifications for why Arizona should have more say in enforcing (their own version of) immigration laws than the federal government is to cite the onerous travel restrictions put on freed black slaves in the southern states. If nothing else, you can’t say that Scalia isn’t an originalist, I suppose, since he would put more stock in pre-and-post Civil War jurisprudence than he would on any stuffy modern notions of what individual states should or should not be allowed to do to black people.
As I’ve said before, though, I don’t think this really reveals anything deep about Scalia’s core values. His core values in these last years have consisted of deciding the case at hand in the way he wants to decide it; any resulting argument is purely for show, and might not ever be mentioned again. These wide-ranging, contradictory arguments get him branded an intellectual, in the same way that Paul Ryan not being able to master grade school mathematics is considered intellectual.
Note that Scalia has already signaled that he’s going to be jettisoning “some” or “many” of his own previous legal theories entirely, rather than be constrained by it in the upcoming Affordable Care Act decision. That’s not the sign of deep judicial wisdom or intellectualism—at best, it’s mere hackishness. And that’s the best-case scenario. No matter what the court decides on this or any other case, it seems clear that Scalia is personally becoming his own one-man Constitution, and he can’t even get his own original intent straight from one case to the next.