Scalia’s originalism Notes for March 1

Main points

We presented Scalia’s originalism by contrasting it with Justice Rehnquist’s version. We also discussed a variety of criticisms of this approach to interpreting statutes and the Constitution.

It was one of those days where class members anticipated the points I wanted to make in the lecture. Really, if I had just sat back and guided traffic a little, we probably would have covered all the bases. Well done!

Original meaning vs. intent

Scalia and Rehnquist disagree with the idea that the Constitution should be interpreted as a “living” document. But while Rehnquist treats the language and intent of the authors of the Constitution as basically the same, Scalia splits the two. He thinks we should interpret the Constitution, or any old statute, according to its original meaning. That is, we should understand these documents as meaning what the people they were addressed to would have understood them to mean.

This is extremely clever and enables Scalia to avoid a host of difficulties with original intent. Some of those came out in the Speluncean Explorers case. Scalia added the apparently bad decision in the Church of the Holy Trinity case to the list.

Questions about originalism

The most important problem is one that we’ll discuss next time: it’s hard to see how to get from the originalist method to the decision that just about everyone regards as correct in Brown v. Board of Education.

Scalia has a partial answer to this. It is that he recognizes two sources of the law: the original meaning of the statute or Constitution and court decisions that have reached the status of setttled precedents. Brown would clearly be the latter. But as Elin pointed out, this wouldn’t really meet the objection. The problem is that the method for interpreting the Constitution wouldn’t have gotten what is regarded as the right answer for a very important case.

There are also some questions about the logic of the position. Chris, for example, brought up a new one to me. Suppose we decided to use all the words in the Eighth Amendment as a new, Twenty-eighth Amendment. Then those words would mean what we now take them to mean rather than what the people in the eighteenth-century took them to mean. This would be so even though they are exactly the same words. And that sounds pretty silly. Clever!

We had several questions about whether the Courts are non-democratic, whether it matters if they are, and whether this alleged problem couldn’t be resolved by simply electing judges.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted March 1, 2010.
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