Philosophy of Law Fall 2019

Scalia’s Originalism

Overview

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 hold that capital punishment is cruel and unusual.

Scalia maintains that this is the most natural way to interpret any historical document, that it is the only fair way to interpret the law, and that it is the only method of interpretation that is consistent with democracy.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

Scalia is keen to distinguish the original meaning of the Constitution from the intent of its authors. 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.

Of course, it’s hard to tell what people mean if you don’t have at least some sense of what they intended to communicate. The words “nice house you have there” can convey either a pleasantry or a threat depending on the intent of the person who utters them. That said, there is a distinction here. Intention is private while 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.

Court precedents

It seems to me 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. At the same time, he argues, courts limit the flexibility of elected legislatures when they rule that legislation is unconstitutional.

If some provision of the Constitution or other law doesn’t fit the times, the most democratic solution, according to Scalia, 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.

Perhaps we should say that Scalia is ambivalent about democracy. He thinks that there are some rights that are set in stone and that, otherwise, the system favors democratic decision making. That’s not obviously a bad attitude to have towards democracy. (You might disagree about which rights should be set in stone and which should not, but that’s a different point.)

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.

References

Klarman, Michael J. 1995. “Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell.” Virginia Law Review 81 (7): 1881–1936. http://www.jstor.org/stable/1073643.

McConnell, Michael W. 1995a. “Originalism and the Desegregation Decisions.” Virginia Law Review 81 (4): 947–1140. http://www.jstor.org/stable/1073539.

———. 1995b. “The Originalist Justification for Brown: A Reply to Professor Klarman.” Virginia Law Review 81 (7): 1937–55. http://www.jstor.org/stable/1073644.

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.

Handout

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