Scalia’s originalism

We discussed Justice Scalia’s version of originalism. According to Scalia, the meaning of legal documents, such as statutes or the Constitution, is determined by how they would have been understood by the people to whom they were addressed.

So, for example, since capital punishment was not understood to be cruel and unusual punishment at the time the Constitution was adopted, the Constitution should not be interpreted to mean that capital punishment is cruel and unusual.

Meaning and intent

We spent a lot of time on Scalia’s reasons for rejecting intent as a guide to the meaning of a legal document. Scalia criticizes reliance on intent; he claims that this is what produced the bad decision in the Holy Trinity case. Audrey was not impressed, however. She noted that the Court simply made some bald assumptions about Congressional intent in that case. It did not collect any actual evidence of intent. Anyone serious about using intent would insist that courts actually collect evidence about what the legislature intended.

And if the courts are forced to use evidence about intent, that will limit their ability to assume that Congress must have intended whatever the judges on the court think is best.

Good point! If I were Scalia, I would try to make my case by saying that meaning and intent cannot split apart. When that happens, following intent rather than meaning has the consequence that the law would be interpreted to have a secret meaning that was not apparent to those to whom the law was addressed.

Puzzles galore!

Ben asked how antitrust law should be interpreted. Should it take into account up to date economics or should it be interpreted in the light of the economic theories that were prevalent at the time the laws were passed? Leo didn’t think this was an obvious problem: a law banning vehicles in the park could be made with the understanding that there would be more parks (and different kinds of vehicles) in the future.

I said we would discuss that next time. Scalia will try to show that his approach allows for a degree of abstraction in the law while Dworkin will try to show that it does not. (See Scalia’s remarks about interpreting what the Eighth Amendment says about electric cattle prods.) That is my best guess as to how he might try to answer Ben: look for a similarity with the 8th Amendment-cattle prod example.

We also discussed Brown v. Board of Education. This will come up next time as well. Note from the handout that Scalia thinks two things. First, past court decisions can be a source of law, possibly even if they were not made in line with his originalist method. Second, he thinks that the Fourteenth Amendment always ruled out segregated schools, from the day it was adopted.

Lane pointed out a logical puzzle with originalism. Suppose that capital punishment was not regarded as cruel in the 1780s but that it is regarded as cruel in the 2180s. If people adopted the 8th Amendment, word for word in the 2189, it would mean that capital punishment was cruel. But the exact same words, adopted in 1789, mean that it is not cruel. Doesn’t this show that there is something silly about originalism?

Maybe this sort of thing does show that originalism is a weird view. That said, if people really did regard capital punishment as cruel now, they could do what Lane says: adopt the 8th Amendment with its new, up to date, meaning. If I were Scalia, I would ask: “why do you think they haven’t done that?” And if your answer is “it’s too hard to get agreement on something like that in our society,” then I (playing Scalia) would respond, “so you prefer rule by lawyers to democracy?”


We mentioned the upcoming Supreme Court case about the Affordable Care Act, a.k.a. the ACA or Obamacare. The issue is whether the Act provides subsidies for insurance purchased through any exchange or only the ones established by a state government, as opposed to one established by the Federal government.

Sarah Kliff has published a helpful history of this lawsuit in Vox.

If you’re too busy for that, here is the very short version.


There was a handout for this class: 11.Scalia.handout.pdf