37 Pages Posted: 14 Mar 2016 Last revised: 26 Jan 2017
Date Written: January 24, 2017
The exposition proceeds in three parts.
Part One lays out Justice Scalia’s version of originalism and why it must be discarded. Originalism is based on the premise that the operative words of the Constitution all have or might have “time-dated” original public meanings that are different from their current meanings; valid constitutional interpretation must rely on time-dated meanings, not current meanings. Justice Scalia employed two different methods — what we call the “literary” method and the “practical” method — for ascertaining time-dated meanings. The literary method relies on literary sources, especially dictionaries, which were published contemporaneously with the adoption of the relevant constitutional provision. The practical method fixes on societal and legal practices extant at the time of adoption. Each method is irreparably flawed. The literary method cannot ever reach any result, because it ensnares the originalist in an infinite regress. The practical method incorporates a fundamental error: it confuses the meanings of words and phrases with their referents. Originalism must therefore be discarded.
Part Two shows that, once originalism has been discarded, resort to any authoritative etymological dictionary confirms an important truth that originalism obscures: as a general rule, the original meaning of the Constitution is identical to the current meaning, with certain narrow exceptions. In general, the words and phrases in the Constitution do not have time-dated meanings; the English of the Constitution is our English.
Part Three highlights three points that importantly are not implicated in the rejection of originalism. First, the fact that the original meaning of the Constitution is generally identical to its current meaning does not imply that that meaning is always clear. Like any complex text, the Constitution is sometimes vague or ambiguous; the rejection of originalism does not eliminate those problems. Secondly, the rejection of originalism does not imply that the study of constitutional history or judicial precedents is unimportant to constitutional interpretation; it implies only that those studies are generally not helpful in ascertaining time-dated original meanings (which generally do not exist). Finally, discarding originalism does not mean that a philosophy of judicial restraint also must be discarded. Originalism was a tool designed (poorly) to restrain jurists from going astray. The fact that a tool is not properly designed to accomplish a particular task does not imply that the task is not worth accomplishing.
Keywords: Justice Scalia, originalism, original public meaning originalism, Constitution, constitutional interpretation
Suggested Citation: Suggested Citation
Weisberg, David E., Justice Scalia’s Originalism: A Flawed Theory that Obscures an Important Truth (January 24, 2017). Available at SSRN: https://ssrn.com/abstract=2746859 or http://dx.doi.org/10.2139/ssrn.2746859