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Posts Tagged ‘originalism

Scalia on Law, Words and their Application

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In an interview with Jennifer Senior, Antonin Scalia valiantly dispatched a straw man. A lot of people have noted this, but I wanted to quote it, and suggest that much of the criticism, while correct, misses the main problem.

Had you already arrived at originalism as a philosophy?

I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

[snip]

What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.

So first off, what Scalia is saying here is factually–incontrovertibly– incorrect. Words do change in their meaning.  Some have taken this as evidence that Scalia doesn’t know what he’s talking about. And I suppose that’s possible.  But it’s also possible that Scalia takes this position because it helps him advance his legal agenda. That is, it helps him justify the substantive positions he takes, the role for the Court he prefers, and so on. By making this about ignorance, we are missing the politics, which makes it difficult to push back effectively.  ‘Originalism is wrong’ is a fine thing to say, but what originalism is doing and how it is doing it are far more important thing to think about.

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Written by David Kaib

October 11, 2013 at 1:13 pm

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