Photo credit: Manuel Balce Ceneta / Associated Press
By Ronald A. Lindsay
As a jurist, Antonin Scalia will likely be remembered most for championing the “originalist” view of constitutional law, that is, the view that in determining how constitutional provisions should be applied today, we need to adhere without deviation to the “original” meaning of the provisions. Scalia maintained this is the only legitimate way for an unelected judiciary to apply the Constitution because otherwise they would be acting as legislators. Scalia repeatedly heaped scorn on the view that judges should interpret constitutional provisions in light of contemporary conditions and standards.
The originalist view has some superficial merit, which, in part, explains why it continues to have supporters. On this view, judges are not influenced by their personal beliefs. Instead, they are objective legal technicians, who hold their positions because they have the skill necessary to understand and apply the constitutional manual. They’re like plumbers but with more education because, you know, the piping in our legal system is more complex than the one in your bathroom.
But the alleged objectivity of originalism is a pernicious myth. To begin, the Founders themselves likely did not adhere to originalism, so originalism is predicated on the paradoxical position that we should respect the Founders by rejecting their own understanding of the Constitution. Moreover, Scalia, like all judges, interpreted constitutional provisions through his own ideological prism. The mask of originalism was simply used to camouflage his agenda.
How is an originalist supposed to determine the meaning of a constitutional provision? According to Scalia, one starts, and ideally ends, with the text. Just read the provision in question.
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