Speaking Tuesday night at the Centennial Celebration of the Illinois Supreme Court Building Gala Dinner, U.S. Supreme Court Justice Antonin Scalia compared his judicial views to that of our state's most famous lawyer and legislator, Abraham Lincoln:

In a series of speeches that carried him to the White House three years later, Lincoln declared that the court was “mistaken” when it determined that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.”

“My brand of legal interpretation, which was mentioned by Justice Burke, called in some courts derisively as ‘originalism,’ as you may have gathered from some of my earlier remarks is not too far removed from the principles that Lincoln articulates in the two speeches I’ve discussed,” Scalia said.

Ahh, the principles of Lincoln. How fondly he must look down on you now, Justice Scalia, as you uphold torture, tell the world that Bush v. Gore isn't a big deal, and infuse religion into judicial life, all in the name of "originalism." But when it doesn't suit your policy desires, it's alright to disregard it, as was the case during last year's school desegregation deliberations.

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Scott Lemieux explains:

Affirmative action cases pose a similar but even more difficult problem for conservative originalists. It is implausible in the extreme to claim that the equal protection clause was generally understood, at the time that Congress was creating the Freedman's Bureau, as prohibiting even remedial or otherwise benignly intended racial classifications. And neither Scalia nor Thomas has even tried to make a serious historical argument to this effect. Rather, they make policy arguments or speak in abstract terms about the principle of "color blindness," a principle that is consistent with but hardly compelled by the 14th Amendment's broad language. The Scalia/Thomas position, moreover, is inconsistent with the central purpose of the equal protection clause: to prevent the perpetuation of a formal caste system through informal means.

Which is all to say that any originalism being used in these cases would be so thin as to place no more constraints on judges than "living constitution" aspirationalism or any other theory would. Once originalism is removed from concrete historical meanings, it can justify almost anything.

Segregation. A social reality I'm sure Lincoln would stand for today.

(h/t Capitol Fax)