Jacob Sullum rightly notes that Antonin Scalia’s position on the federal sentencing guidelines belies the left’s caricature. Sullum titles his post “Antonin Scalia, Bleeding-Heart Liberal.” I think he’s being tongue-in-cheek, but it’s worth spelling out the point that Scalia’s position doesn’t really put him on the “left” in this issue; this is an instance where conflating political ideology with judicial philosophy obscures more than it reveals. Scalia has led the fight against the sentencing guidelines because he believes they unconstitutionally attenuate the Sixth Amendment right to trial by jury. This has little to do with the actual results of the guidelines, and everything to do with Scalia’s theory on how the Sixth Amendment was originally understood. Originalism isn’t supposed to be results-oriented. We only think of originalism as “conservative” not because it leads to conservative policies, but because it’s been conservatives who have most forcefully argued that a policy’s efficacy doesn’t determine its constitutionality. The liberal caricature of Scalia comes largely from the failure to grasp that point (or from incredulity about conservatives’ sincerity).
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