Philosophy of Law Spring 2018

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 for a variety of reasons. The most important is that he thinks it inevitably gives judges too much power. For instance, he thinks that what he regards as the bad decision in the Holy Trinity case resulted from the court’s reliance on intent in interpreting the statute.

Nonetheless, a number of us were unsure if it was even possible to separate out intent and meaning. They seem to mean the same thing. And it’s not clear that you can find any linguistic utterance meaningful without some beliefs about the intentions of the person who made it. At a minimum, you have to think that the person intended to communicate something rather than, say, accidentally producing sounds or written marks that just happen to resemble words.

Without saying that Scalia is necessarily right, I want to indicate what he has in mind in drawing the distinction between intent and meaning.

  1. Intent is private, meaning is public. Intentions are within the minds of the law makers. What words mean is determined by how they are understood in the society at large.

  2. If courts are to consider intent, they should gather evidence about the legislative history of statutes, such as notes taken during the drafting of the law. If courts are to consider meanings, they have to know about how the language was used at the time the law was drafted.

That said, I think we should bear Will’s point in mind. There is no guarantee that the original meaning of a provision of the Constitution, say, was totally clear in 1789.

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 a statute’s meaning and employing strict constructions of the text. He thinks it’s obvious that the statute would have been understood to refer to threatening to shoot people in the course of committing a crime. Since that is so, that is the only way of using a gun that should matter for the purpose of interpreting the statute.

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.

Scalia himself is comfortable with accepting precedents. That is what he means in saying “I am an originalist, not a nut.” So he would surely accept Brown v. Board of Education for that reason.

As it happens, he thinks that the case was correctly decided on originalist grounds. He thinks that the Fourteenth Amendment originally meant that segregated schools were unconstitutional. For evidence that this is his opinion, see the handout.

The handout does not go into why he thinks that. I suspect he was influenced by an article by Michael McConnell that makes an originalist case for Brown (see McConnell 1995a; McConnell 1995b). Dworkin, on the other hand, cites a critic of McConnell’s article (see Klarman 1995).

Flexibility and Democracy

A common objection to originalism is that it does not allow for the law to change with the times. Scalia thinks that is an advantage. The Constitution’s provisions of individual rights are immutable, so a society can’t backslide on them.

If some provision of the Constitution or other law doesn’t fit the times, the most democratic solution, Scalia says, is to amend the Constitution or change the law. The least democratic solution is to have the courts change the law or the Constitution.

While both points seem worthy, they do make it hard to say whether Scalia thinks that there should be more or less democracy. On the one hand, he favors democratic lawmaking over judicial lawmaking. On the other hand, he thinks it is important to have an inflexible Constitution that is very hard to change as a bulwark against majority rule. In the light of this, it’s fair to ask just how important democratic decision making really is for him.

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.
  3. Backsliding.


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.

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