Justice Scalia defends originalism


Justice Scalia’s 1L photo, 1958
Scalia 01.jpg

On Thursday, October 2, Associate Justice Antonin Scalia ’60, of the U.S. Supreme Court spoke to students in Ames Courtroom. Scalia had been invited to deliver the inaugural Herbert Vaughn Lecture, which was endowed to teach the founding principles and core doctrines of American Constitutionalism.

In introducing Scalia, Dean Elena Kagan ’86 referred to him as, “A giant in the Law,” and gave praise for his jurisprudence. She said it will be known to history as “one of the most significant products ever in American Law.”

Scalia’s speech was entitled, “Methodology of Originialism.” The 60-minute lecture was part explanation and part defense of his commitment to originalism as a tool for interpretation of the Constitution. At the outset, Scalia placed originalism in the context of competing methodologies of interpretation, much as he does in his written opinions. He said that his task runs counter to the prevailing notion of a Constitutional consequentialist’s interpretation and a living Constitution. Scalia singled out Chief Justices John Marshall and Earl Warren as jurists who placed the Court on a crooked path. Rather than say originalism was perfect, Scalia noted that originalism is not and need not be perfect, “It just beats the other alternatives … and that is not difficult.”

The overriding dynamic, in his mind, lies not between different results, but different roles for judges interpreting a Constitution. Saying, “The text does not change from generation to generation,” and that the original meaning, by definition, cannot change, the judicial role is limited to an assessment of what the text of the Constitution meant when it was written. Scalia stated that when judges search for the meanings of texts as they wish them to be, they engage in “moral philosophy” for which they are poorly trained. Rather, he feels that lawyers are well-trained for historical research which will help us to understand what the Framers of our Constitution meant.

Scalia was appreciative of the expanded use of originalism among lawyers at oral argument before the bench as well as in written argument. Recalling his early years on the Court, Scalia told a story of how the Thompson case of the 1987 term sticks out in his mind as an instance where his clerks were alone in their quest for the historical meaning. He contrasted that with last term’s District of Columbia v. Heller decision involving the scope of the Second Amendment right to bear arms, where he was awash in “excellent” historical analysis.

This growth in historical analysis,”unthinkable” when he arrived, is far more relevant to his own opinions than the policy-driven briefs. Whereas he finds the former informative and helpful, the latter are of little use to him as being “wholly divorced from the text” of the Constitution he must interpret. Justice Scalia says that amicus briefs are of particular help in producing thorough historical work, though he feels that some amici are more helpful than others. He criticized the use of academic briefs, stating, “Disinterested scholarship and advocacy do not mix well.”

Returning to his theme that historical inquiry and originalism are not perfect, he pointed out that originalism is “more than a lexicographer’s task.” Indeed, the task does not end once he has arrived at the original understanding of the text, for sometimes that understanding itself needs legal interpretation. This, he said, is the primary role of judges-using their skills of legal analysis to decode the meaning of text. Importantly, he said “An honest originalist will sometimes reach conclusions he does not like. The same cannot be said for constitutional consequentialists.”

After concluding his speech, Justice Scalia took questions from the audience. The questions, posed by both students and professors alike, ranged from challenging to accusatory. Asked about the moral, rather than methodological support for originalism, Justice Scalia noted that democracy is his guiding principle. If the majority wants a change in direction, they should pass appropriate Constitutional amendments, rather than resort to the moral philosophizing of judges. Amendments, he said, are the only way to demonstrate that “We the People” have changed our minds from the original understanding of the text.

Felix Frankfurter Professor of Law Alan Dershowitz challenged Justice Scalia’s claim to being an “honest originalist.” Citing a handful of cases, and promising that he could continue for dozens more, Dershowitz asked Scalia to explain the cases where originalism played no part in the written analysis. Justice Scalia quipped, “What did Sarah Palin say…I’ll get back to you on that.”

As the questions continued, the tone never quite returned to deferential awe. Rather, the student body, emboldened by Dershowitz, continued to ask the Justice to defend decisions which they found to be ideologically driven. In a tone half-exasperated, half-joking, Justice Scalia finished his presentation with the words, “I don’t have to prove that originalism is perfect.”

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