Who’s An Originalist?

I see where Justice Scalia has been claiming to be the Court’s one true originalist again.

“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.

When I ask students who profess to be originalists to define the term, the answers generally   come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share.  The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?

If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.

Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.

I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.

Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”

We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.

When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.

Over at Dispatches from the Culture Wars, Ed Brayton recently said it best:

“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”

Indeed. And intellectually dishonest about it, to boot.


  1. I have a question regarding Amendment 1; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;…” Where in “freedom of the press” does it state or give authority for courts to imprison members of the press if they do not reveal their source of information? Doesn’t “freedom of speech” include the right not to speak or does it force people to speak against their own better judgement? This does not seem to apply under Amendment V. The Amendments are open to interpretation to fit the times; which have changed drastically since written. The Founders could not have imagined the conditions we live with or the laws we live under in this world today…science fiction was not part of their vocabulary or a figment of their imagination.

  2. “Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.”

    You wish. Constitutions may be whatever a people desire, but our Constitution is a rigid, fixed, inflexible set of words that means a specific thing. When instruments mean whatever someone, at some point, desires, there is no writing, at all, and there is no point upon which people have come to a common understanding of what government they have erected.

    If that Constitution doesn’t means exactly what a plain reading of it says it means, then it means nothing, and many explicitly withhold their assent to any government that can do whatever it wants, whenever it wants, being bounded by precisely nothing.

    In order for a man to grant to grant sovereignty to the state, you must first bargain with that man and ensure him of what, precisely, you plan to do with his sovereignty. If he takes the bargain, you don’t get to pull a bait-and-switch and run off and do far more with his sovereignty than that to which he specifically consented.

    Government derives its just powers from the consent of the governed. To just what are the governed consented? If the words proving consent mean nothing, there is no agreement. if their is no agreement, the government is a pretender to the throne.

  3. Scalia is a grandstander, a smart showoff who likes to intellectualize his biases, pretending he knows the “truth”.

  4. “Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.”

    Absolutely. But that isn’t contrary to originalism. (I prefer original intent.) The purpose of originalism is to figure out what those “important principles” are to be applied. First, you look at the actual words and then you look at the history to try to figure out what was meant by those words.

    I don’t agree with your description of the “living constitution” theory. That theory is not about figuring out what the principles are that are to be applied. Rather the “living constitution” theory holds that judges have the authority to change those constitutional principles, and create additional ones when they see fit, in order to impose policies via the guise of judicial interpretation.

    The example I always use in my class is capital punishment. The Constitution and the amendments on three occasions use the term “capital punishment.” Obviously by the adopting the 8th Amendment “cruel and unusual punishment” provision they never intended to do away with the death penalty. Yet many, such as the late Justice Brennan, who hold the “living constitution” theory believe that due to evolving society the Supreme Court should use the 8th Amendment to strike down state laws that allow the death penalty. Those who hold the “living constitution” don’t care what the actual words are or what the history was behind them. They don’t care about the principle. They want a new principle that will allow them to strike down a “bad law.”

    Certainly society has evolved and maybe we should do away with the death penalty. Indeed states have the authority to do exactly that and many have. The notion that judges though should be a super legislature imposing “good policies” through the guise of interpreting the law is unfortunately a belief that many who believe in the “living constitution” theory hold.

    I don’t disagree with your point that Justice Scalia has been inconsistent in applying his originalism theory. But at least he has a theory, a way of interpreting the Constitution that has a structure. I can’t say that about the liberals who appear to have no structure to the way they interpret the Constitution. If they think it’s a good law, then it’s constitutional and they’ll twist the constitution to reach that conclusion. If they think it’s a bad law, then it’s unconstitutional and they’ll twist the constitution to reach that conclusion.

  5. So Paul, “liberal” justices decide cases as they see fit and call it “living constitution”, which is bad, while Justice Scalia decides cases as he sees fit and calls it “original intent”, which is good.
    They look the same to me, except for the label.

  6. Len, placing Scalia and the Liberals in the same company regarding Constitution-twisting is really quite a reach. Liberals are entirely outcome-focused. There is not one foundational principle which a Liberal will not excuse on her way to getting the outcome she wants. Scalia may steal from the cookie jar, at times, but at least he feels badly about it. A Liberal, by contrast, will feel badly about not going after the desired end with all the vigor necessary to bring it about.

  7. So then how can Scalia support the idea that everyone should be able to own lots of guns when the 2nd Amendment pretty clearly and literally connects the need to own guns with being in a militia? Can he switch that attitude on and off when he feels like it?

  8. Grammatically speaking, it’s “feel bad,” not “badly.” Several crazy little verbs require that pesky adjective to follow them. The verbs are as follows: seem, become, taste, feel, look, sound, appear.

    If one “feels badly,” there is something amiss with his/her sense of touch or feeling.

    Class dismissed!

  9. Stuart, the Second Amendment has no connection, whatsoever, to the militia.

    Were the Chancellor of IUPUI to state “IUPUI being the finest school in all the Midwest, Sheila Kennedy will be holding office hours on Thursdays from 2:00 to 4:00.,” office hours will be held on Thursdays from 2:00 to 4:00, regardless of the veracity of the prefatory clause to the ablative absolute.

    Perhaps Betty might be of service here if her chops are sharp.

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