Mr. Scalia’s views on originalism have been widely disseminated; the justice has not in the past hidden his light under a bushel basket. An address on orginalism delivered twenty three years ago at the University of Cincinnati during the William Howard Taft Constitutional Law Lecture is available to every reporter in the state at the click of a mouse.
In that widely available lecture, Mr. Scalia dilates on the defects of non-orginalist interpretation. Briefly, non-orginalism binds constitutional interpretation to what has been called “the living constitution,” which is to say the constitution as interpreted by justices of the moment who feel that the ancient provisions of the constitution must be translated with reference to current sociological considerations that carry greater weight than historical interpretation.
The origanalist interpreter acknowledges that some language in the Constitution may be ambiguous and in need of interpretation. Faced with a difficult constitutional term, the originalist will first consider the constitutional text. Not every Constitutional referent is ambiguous, but some are. If the referent is unclear, he then will seek its meaning in other contemporary texts such as state constitutions, constitutional deliberations, newspaper accounts, historical journals and the like. In Mr. Scalia’s understanding, proponents of a “living constitution” may dispense with such bothersome tasks, because the non-originalist is engaged in a procrustean effort to trim the appendages of the Constitution so they may better fit the bed of modernist subjective interpretation.
If one does not give proper weight to the original meaning of the Constitution, the document itself becomes a mere fantasy in the minds of judicial interpreters -- judicial interpretation as fad, and there is nothing so impermanent, changeable and fickle, G. K. Chesterton reminds us, as a fad. Under this scheme of interpretation, interpretive responsibilities simply disappear, and constitutional meaning becomes a meaning of the moment loosed from constitutional moorings.
Mr. Scalia is concerned with moorings and bindings and constitutional interpretive boundaries, as any reporter might have discovered by reading his twenty-three-year-old University of Cincinnati lecture, one always hopes, in preparation for reporting on the justice’s Wesleyan lecture.
Mr. Scalia arrived at the university at about twelve noon. He graciously spent about ten hours at Wesleyan, lunching with the students, talking with students and faculty, giving a well prepared lecture that lasted more than an hour, entertaining questions afterwards, and commenting good naturedly on the antics of professional protesters who unfurled banners wrong side out, so that the message on them was obscured, and sprinkled those attending the lecture with a shower of condoms. These happy warriors, some of whom were veterans of the "Occupy Wall Street" movement, bearing signs outside, one of which read “The GOP Hates Women”, left the premises before Mr. Scalia explained that non-originalists were more likely than originalists to deprive them of their First Amendment rights of free speech, originalists being bound by constitutional provisions the import of which are made clear by hard historical research, while non-originalists rely on a capricious, ever changing interpretive standard that is faddish and subject to the fanciful imaginations of fallible justices.
Both originalist and non-originalists, Mr. Scalia said in his address, may make errors in judgment; and, in fact, Mr. Scalia mentioned in his address an instance in which, on reflection, he determined that the consequences of one his own originalist interpretation was too severe to be borne. But, he insisted, orginalism, while not error free, a least applies a measurable standard to judicial interpretation. Its great virtue is that its rigorous standard binds judges and leaves people free, while non-orginalism frees the judicial imagination and more often deprives people of their constitutional liberties.
An excellent report on Mr. Scalia’s appearance at Weselyan by David Lat may be found on his site, “Above the Law”
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