Notes for February 27

Main points

We talked about Justice Scalia’s version of originalism. We distinguished his version of originalism from those that rely on “original intent” or “strict construction” of a text. We spent most of our time discussing Angela’s question: what makes the original interpretation the best one?

What’s so great about the original meaning?

I myself think that Scalia is on pretty solid ground in saying that if you’re trying to interpret a document the most natural thing to do is to look at what it would have meant to people at the time it was written.

It was not as obvious that this is the appropriate way of interpreting laws. It does not obviously give those who have to follow the laws a lot of guidance about their meaning, for instance. I would think that the present-day meaning would be better for that. But maybe David is right that this is a problem that could be worked around by simply being consistent.

Scalia on Brown

One thing that Scalia repeatedly says is that changing the law to suit the times is a job for the legislature, not the courts. It’s not only their job, but it’s more in keeping with democratic government, since legislators are elected while (most) judges are not.

His opponents object that the needed changes would not, in fact, come about through the legislature and that amending the Constitution is an excessively difficult process. In making their point, they refer to actual cases that had desirable results but would not have been decided the ‘right’ way if the courts had been committed originalists.

For example, one of the toughest questions for originalists involves the civil rights cases, such as Brown v. Board of Education. Those cases relied on the Fourteenth Amendment’s equal protection clause.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But the Congress that passed the Fourteenth Amendment ran the District of Columbia which had racially segregated schools. So it’s hard to argue that the Amendment was originally understood to rule out segregated schools. What’s more, the decision itself has lines like this:

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. (Brown v. Board of Education, 493.)

One thing the originalists could do is to follow Sally’s suggestion and say that Brown v. Board of Education was wrongly decided. That doesn’t mean they disapprove of the result, just that they did not think the legal reasoning was accurate.

One thing I had forgotten is that Scalia himself does not think this is necessary: he thinks Brown was correct even on originalist grounds. Here’s a transcript from the oral arguments on March 26, 2013 in the gay marriage case, Hollingsworth v. Perry.

JUSTICE SCALIA: … I’m curious, when -­ when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker, where we said it didn’t even raise a substantial Federal question? When -- when -- when did the law become this?

MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.) (pp. 38–9)

Gosh, I would have loved to hear more about that. I suppose he’s written his reasoning down somewhere. Anyway, there you have it.

Key concepts

  1. The distinction between intent and meaning.
  2. The Holy Trinity case.


There’s a very interesting book called What Brown v. Board of Education Should Have Said. It is filled with alternative decisions written by legal scholars. One of them, Michael McConnell, is an originalist who maintains that originalism could have been used to achieve the same result.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted February 27, 2014.
Philosophy of Law