A Liberal Scalia

Peter Suderman nails the problem with creating a “liberal Scalia“:

Scalia’s views are relatively clear and straightforward: We know what words and sentences mean, and that’s what we use when interpreting the law. And as far as the Constitution goes, we not only know what it means, it’s also always meant the same thing, and it’s always going to.

What’s the liberal alternative to this? We don’t know what words mean, exactly, and sometimes we should use other words outside the law, which may or may not mean what they seem to mean, to help us figure out how to understand legislation? And the Constitution may mean one thing today (although it also may not), but either way it might not mean that tomorrow?

Just look at, for example, abortion. Speaking only for myself, I’m pro-choice (at least in the first trimester). I’ve always appreciated the “safe, legal, and rare” rubric. But Roe is an absolute monstrosity of a ruling, obscure, complex, and full of the nonsense that drives originalists crazy. It is, simply put, bad law, and that bad law has led to decades of culture wars.

It’s also extraordinarily complicated. So while it’s easy to say “Roe made abortion legal,” it’s almost impossible to explain quickly and with panache how that reasoning squares up with any common sense understanding of the Constitution. You get into theories and living documents and penumbras and soon you’re lost. And all you’re left with is “Roe is the law. Deal with it.”

I guess my challenge to Lithwick and others is this: How would a liberal Scalia argue Roe? I just don’t see how it’s done.