Justice Scalia’s Originalism

We discussed Justice Scalia’s theory 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.

Scalia maintains that this is the most natural way to interpret laws, that it is the only fair way to interpret the law, and that it is the only method of interpretation that is consistent with democracy.

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, a student in last year’s class, was not impressed with this argument. She noted that the Court simply made some bald assumptions about Congressional intent in that case. If they had been more attentive, they would have picked up on the same thing Scalia did, namely, that the legislation did make exceptions for a variety of jobs but not the one in question (see Scalia 1997, 19).

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.

Matthew offered a defense of Scalia’s point similar to one of Keen’s points against Foster: the legislature rarely has a single intention.

I said that if I were Scalia, I would argue that it is unfair to use intent, which is private, rather than meaning, which is public. In response, Antonio said that he did not think this was a good argument for an originalist to make. After all, people are expected to comply with the law even though they do not know its historical meaning. Max said, in reply to Antonio, that as Scalia sees it the meaning of the law is fixed and so it is equally available to people now as it was then.

Strict construction

Scalia argues that a case involving a statute with penalties for using a gun in the commission of a crime illustrates the difference between using the original meaning and employing strict constructions of the text.

Noah asked what he would have said in a less obvious case. Suppose the guy had hit someone with the gun rather than trading it. Would that count as “using” the gun or not?

The thrust of the question is a good one. As Hart taught us, there will always be problems of the penumbra. Scalia’s view looks good when we can discern a clear, common sense meaning of a statute. But what happens when we get to cases where we cannot find such a thing?

Court precedents

I said that, strictly speaking, originalists should not allow court decisions to be a source of law. That follows from the interpretive method as well as from the points about democratic decision making that Scalia frequently makes.

This raises sticky questions about what to do about settled interpretations of the law that can be traced back to court decisions rather than to legislation.

The most important case like this for originalists is Brown v. Board of Education, which ruled that racially segregated schools violate the Constitution’s 14th Amendment. The Congress that passed this amendment also ran a segregated school system in the District of Columbia. That is evidence that the original meaning of the Amendment was not incompatible with segregated schools. But repudiating Brown v. Board of Education is something that almost no one is willing to do.

Austin said that Scalia’s point about fairness should lead him to say that courts should continue to interpret the law in line with the past court decisions. That is what people take the law to mean, after all, and it is unfair to enforce laws whose meaning is unknown. This is where Scalia himself winds up and that is why he was fond of saying “I am an originalist, not a nut.”

Max (and later Matthew) said it was available to him to say that while the results in Brown was morally correct, there is nothing in the law that leads to that decision.

Scalia himself said otherwise. He thought Brown was correctly decided on originalist grounds. I would have loved to have heard more from him about why.

Update (2/28) on Brown v. Board of Education

When I pointed out that Scalia said he thought Brown v. Board of Education was properly decided on originalist grounds, I said that I wished he had explained why.

I was re-reading Richard Posner’s review of one of Scalia’s books this afternoon and came across what I assume is a fair statement of Scalia’s reasoning. (I should add that Posner’s review is pretty tough. It is titled “The Incoherence of Antonin Scalia.” Make of that what you will.)

It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified. Yet Scalia and Garner claim that “recent research persuasively establishes that [the ruling in Brown that separate but equal is not equal] was the original understanding of the post-Civil War Amendments,” citing for this proposition a single law review article published seventeen years ago. They do not mention the powerful criticism of that article by Michael Klarman, a leading legal historian—which the author of the article they cite, Michael McConnell, is not, although he is a distinguished constitutional law professor and a former federal judge. And, ironically, McConnell based his analysis on the legislative history of the Fourteenth Amendment, which should be anathema to Scalia. (Posner 2012)

So it sounds as though Scalia rests everything on an article by Michael McConnell (see McConnell 1995a; McConnell 1995b). Posner, at least, seems to agree more with Michael Klarman’s criticisms of McConnell’s article (Klarman 1995).

Democracy and minorities

One of Scalia’s arguments for originalism is that the purpose of a document like a Constitution is to block social change. The US Constitution forbids the establishment of a state religion because the authors did not want subsequent generations to have the flexibility to adopt a state religion if they wanted to do so. The idea that the Constitution is a living document that changes with the times would have to leave room for something like that and Scalia has a pretty good point when he says it does not seem to do so.

Of course, the back hand of blocking social change is that some social change is good. Matthew reminded us of Scalia’s point here: if society evolves, society can pass new laws to suit itself. The proper way for the law to evolve in a democracy is to pass laws through elected bodies, not to have judges change the law to suit the times, as they understand them.

Max noted the major problem for that reply: minorities might not be able to convince the majority in a democracy.

Matthew said he was not convinced that the Constitution makes special provisions for minorities. For better or worse, it sets up a democracy. Jerry ended with a quote from Justice Kennedy expressing disagreement with that point and saying that the Constitution does make special provisions for minorities.

And that was it for the day.

Key concepts

  1. The difference between original meaning and original intent or strict construction
  2. Why Scalia thinks that originalism is the most appropriate theory of law for a democracy.


Klarman, Michael J. 1995. “Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell.” Virginia Law Review 81 (7): 1881–1936.

McConnell, Michael W. 1995a. “Originalism and the Desegregation Decisions.” Virginia Law Review 81 (4): 947–1140.

———. 1995b. “The Originalist Justification for Brown: A Reply to Professor Klarman.” Virginia Law Review 81 (7): 1937–55.

Posner, Richard A. 2012. “The Incoherence of Antonin Scalia.” The New Republic, August 24.

Scalia, Antonin. 1997. “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and the Laws.” In A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann, 3–47. Princeton: Princeton University Press.


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