Originalism is shaping the Supreme Court

By Aristophanes

With his theory of originalism, former U.S. Supreme Court Justice Antonin Scalia said one should interpret the Constitution, as well as other statutes, by adhering to an original semantic meaning. By this process, a correct interpretation is equivalent to how a law would have been understood by a “reasonable person” at the time it was first codified.

It’s a theory the late judge has indirectly bequeathed to his replacement, Justice Neil Gorsuch, who was appointed by President Donald Trump and confirmed by the Senate earlier this year.

Other conservatives on the bench, including Justices Samuel Alito and Clarence Thomas, hold constitutional originalism, or similar principles, in high esteem. As such, it is a mode of interpretation that promises to shape decisions of the Supreme Court for years to come.

But what exactly does originalism entail?

Although they might disagree on particulars of a constitutional passage’s true original meaning, this method of strict adherence grants originalists the benefit of a clear and defined goal in legal reasoning, Scalia believed. Opposing theories of constitutional interpretation, such as living constitutionalism, lack this strength while also presenting numerous anti-democratic drawbacks.

Originalism also confronts what Scalia viewed as the dangerous inflexibility of more extreme textualist theories, such as strict constructionism, which also looks for original meaning but in an entirely literal fashion. In contrast, originalism is open to interpreting a passage’s meaning as nonliteral in certain instances, should that align with the before-mentioned reasonable person standard.

For example, in a book on constitutional originalism, Scalia cited what I will refer to as the Firearm case. In this, the U.S. Supreme Court was tasked with interpreting a statute that listed certain increased penalties if one made “use” of a firearm during a drug trafficking crime. For this case, a firearm was in fact used, but not as a weapon; the gun was merely used as barter material.

The justices of the Supreme Court ruled against the harsher penalties, interpreting the statute as referring, specifically, to use of a firearm as a weapon. Scalia concurred, arguing the statute as it was originally understood by the public implicitly meant “use of a firearm” to mean “use of a firearm as a weapon.”

Thus, Scalia presented his theory as a reasonable mid-point between the two extremes of strict constructionism and living constitutionalism, arguing that it not only preserves democratic values, but also increases a court’s efficiency and respectability. As the Firearm case shows, an originalist approach does not always lead to the most literal conclusion.

“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means,” Scalia said. To justify originalism, Scalia first acknowledged the very haphazard state of legal reasoning itself. The lack of consensus over how a judge ought to interpret and what goal his interpreting should pursue is exacerbated by the vagueness of the Constitution.

Given this ambiguity of duty, semantic originalism and its reasonable person standard should be our default position, Scalia said. It is the sole position best suited to preserve the power of democratically elected officials and is thus of great benefit to a healthy democracy.

Scalia believed this was so for several reasons. For one, semantic originalism de-politicizes constitutional interpretation. When a justice’s sole goal is to determine the original meaning of a constitutional passage, he must reason from objective facts about the world, such as how specific words were in use in other texts, even extra-legal ones, at the time.

By de-politicizing the position of Supreme Court justice, you also thereby de-politicize the process of appointing one. In order to protect the rights of a minority, a properly functioning federal judiciary must not simply adhere to the whims of a majority, as politicization would only incentivize. Instead, justices must be academics concerned with proper textual interpretation alone and not the political outcomes of certain findings, Scalia argued.

Another way in which semantic originalism protects a well-functioning democracy is to insulate a written constitution from rapid alterations in meaning, as its relatively rigid standards of interpretation block against fickle societal wants. Forgoing this necessary consistency would have two adverse effects: It would create greater confusion among the public over which rights were truly, everlastingly protected by the government, and it would also bypass concrete, legislative action needed for a society to advance and evolve, according to Scalia.

“It certainly cannot be said that a constitution naturally suggests changeability,” Scalia said. “To the contrary, its whole purpose is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.”

This statement is accompanied by Scalia’s belief that societal evolution is not always in the direction of greater personal liberty, something he sees as a false assumption on the part of many nontextualists. Even if it were, however, Scalia held that greater personal liberty is not an ideal to uphold in all areas of the law.

For example, Scalia examined the constitutional right to bear arms. The Founders felt the right of self-defense so important to American citizens that they enshrined it in the Bill of Rights. However, this Second Amendment right has come under fire in recent decades from living constitutionalists who interpret the passage in question as merely establishing a right of maintaining state militias, or national guard divisions, as opposed to protecting an individual’s right to carry a firearm.

Scalia also highlighted a particular court case involving the right of the accused to be confronted by the accuser in court. In a certain case, a young sexual assault victim, deathly afraid of the suspect, was not required to confront the man in court. A court should not uphold such a decision, as it clearly goes directly against written law granting a certain right to the accused. This decision, which would not have been made if the court had adhered to semantic originalist interpretation, was a dangerous precedent, placing the court in the position of holding enough power to, as Scalia saw it, clearly usurp an undeniably clear protection of personal rights.

The above case may be an example of non-semantic originalism, a clearly anti-democratic position by Scalia’s reasoning. For this, one would adhere to the original intent of the legislature instead of each statute’s actual original meaning.

Scalia disagreed with this stance, as he believed it would give too much power to the judiciary. Judges would be free to impose their own intent by masking it as the original intent of the legislature, which would be harmful to democratic values.

He further emphasized the point with a quote from Dean Landis of Harvard Law School: “The gravest sins are perpetrated in the name of the the intent of the legislature,” Landis said. Scalia concurred.

Scalia believed his own view guarded against this by the nature of its very process. Original intent is highly subjective, as enacted laws are abundantly polluted with many diverse, sometimes conflicting intentions of numerous lawmakers who often vote on the same bill but for different reasons. Original meaning, however, deals with objective facts that can be more easily proven by looking at how language was understood at the time a specific law was made.

For example, when the Bill of Rights was first codified, “cruel and unusual punishment” clearly did not include the death penalty, as capital punishment was already mentioned in numerous other portions of the Constitution. The death penalty was constitutional then, and it is absurd to say that certain constitutional passages can become unconstitutional over time, given no relevant amending of the document, as this destroys the very idea of a constitution being an unchanging codification of citizens’ rights in the first place. Therefore, capital punishment — the general idea of, if not certain specific procedures of execution — is as constitutional now as it was back then.

When it comes to interpretation through original intent, Scalia did present a possible example of when it would be acceptable, however. If the law contains a “scrivener’s error,” where poor grammar, misplaced punctuation or the omission of implicitly understood words unintentionally changes a section’s meaning, it would be OK for the courts to intervene. The Firearm case, mentioned before, would fall into this category.

“But although the good textualist is not a literalist, neither is he a nihilist,” Scalia said. Here, Scalia expressed his belief that judges must practice restraint in non-literal translation.

In an expression of disdain for living constitutionalism, Scalia referred to it as “the common law returned,” highlighting what he saw as its over-the-top liberality. To illustrate this dislike, Scalia invoked the Eighth Amendment’s mandate against “cruel and unusual punishment.”

This should be interpreted as meaning cruel and unusual punishment by the standards of the time the amendment was written, Scalia said, for the courts should not be the institutions determining what the current standard of “cruel and unusual” should be. Such authority would amount to common law, he said. The elected legislature should decide if an amendment needs changing, empowering the legitimacy of our democratically elected leaders and giving the broader populace an indirect say in the matter.

Here, Scalia argued that differing passages of the Constitution have to grow in tandem. To him, “cruel and unusual” cannot represent a license for the courts to facilitate an evolving standard over time, as this could allow other parts of the Constitution that expressly mention capital punishment to grow unconstitutional. As mentioned previously, Scalia believed this notion to be dangerous in regard to a citizenry’s ability to hold a democratic government accountable, as it gives too much power to change, with consent of only one of two involved parties, what is meant to be a common agreement between an entire citizenry and its government.

Constitutions must remain static unless the people and their government both agree, through proper legislative process, as an already defined agreement in the original Constitution, to add, amend or remove certain passages.

Scalia was very concerned about a possible tyranny of the majority, in which minority rights are slowly erased in favor of majority desires. Semantic originalism is the best bulwark, he believed, and originalism should be our default position as, unlike living constitutionalism, it holds no assumptions about the good nature of succeeding generations.

Scalia is not alone in his thinking. The Supreme Court of the modern era is often loath to overstep its boundaries. This is both a blessing and a curse. We have a high court that, largely, keeps its nose out of the business of other governmental branches. Simultaneously, the nine justices often neglect pressing concerns and fail as an effective counterbalance to legislative and executive overreach.

The correct path to follow lies somewhere near the middle ground. The justices should refrain from taking originalism too seriously, but neither should they discard its tenants entirely.


Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law1998.

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