Scalia Defends Originalism as Best Methodology for Judging Law

April 20, 2010

Examining what the Founders meant when writing the Constitution is the best method for judging cases, U.S. Supreme Court Justice Antonin Scalia said Friday during a lecture sponsored by the Thomas Jefferson Center for the Protection of Freedom of Expression.

"My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult," Scalia said.

Originalism suggests that the Constitution has a static meaning, Scalia said.

"Of course its provisions have to be applied to new phenomena" like the radio and the Internet, he said."It is essential to originalism, as it is not to so-called 'evolutionary constitutional jurisprudence,' to know the original meaning of constitutional provisions.

"I deny the premise that law has nothing to do with historical inquiry," Scalia said, dismissing critics' assertions that inquiry into the past has nothing to do with law."Historical inquiry has nothing to do with the law only if the original meaning is irrelevant."

Even the most ardent non-originalist will have to resort to historical inquiry at times to understand legal concepts like the writ of habeas corpus or cases of admiralty, he said.

Scalia pointed to District of Columbia v. Heller, a 2008 Supreme Court case in which several D.C. residents challenged the District's ban on handguns and restrictions on other firearms. Defenders of the law said the right to "bear arms" as outlined in the Second Amendment had an exclusively military meaning, but a 5-4 majority in the Supreme Court showed the meaning was different by looking at historical texts.

The right to have arms for personal use for self-defense was regarded as one of the fundamental rights of Englishmen, Scalia said.

The prologue of the Second Amendment, "a well-regulated militia being necessary for the defense of a free state," could not be reconciled with the personal right to keep and bear arms unless one had the historical knowledge behind it. In England "the Stuart kings in had destroyed the people's militia by disarming those whom they disfavored."

Critics of originalism exaggerate the difficulty of determining original meaning, Scalia said.

It's true that originalists don't always agree, Scalia said, noting that at times he and Justice Clarence Thomas - perhaps the "only other thorough-going originalist on the court" - disagreed.

But in most cases, especially controversial ones, the originalist point of view is clear, Scalia said. No provision of the Constitution guaranteed the right to abortion, homosexual sodomy or assisted suicide, and nothing prohibited the death penalty, he said.

"All these questions pose enormous difficulty for non-originalists, who must agonize over what the modern Constitution ought to mean with regard to each of these subjects, and then agonize over the very same questions five or 10 years later, because times change," he said.

During the last assisted suicide case, a majority of the court said it was "not prepared" to announce a constitutional right to what at the time was universally criminalized conduct.

"Stay tuned," Scalia said.

Similarly, in the course of 16 years, the court changed its decision that juvenile capital punishment was permissible and declared it cruel and unusual punishment.

"I will stipulate that [originalism] is not perfect," he said. But "in ease of lawyerly application, never mind legitimacy and predictability, it far surpasses the competition."

Lawyers "are not trained to be moral philosophers," which is what it takes to determine whether there should be a right to abortion or assisted suicide."History is a rock-solid science compared to moral philosophy," Scalia said.

In the past few decades the court has been the beneficiary of a growing body of scholarship in history and constitutional legal history. Judges today have no shortage of secondary literature to sort through, Scalia said, including thorough amicus briefs - "sometimes too thorough."

Twenty years ago amicus briefs were unreliable in their spare analysis of textual and historical meaning, Scalia said.

By the time Heller came to the court in 2008, the mass of briefing was "nothing short of spectacular," and filled over five volumes in the Supreme Court library. Historical details were the "heart and soul" of the briefing, Scalia said.

Although briefs now address the originalist approach, Scalia said many briefs are not helpful, including those from trade associations, which seem designed to "assure the association members that their staff is on the job." Academic briefs written by a small number of faculty that are "circulated like petitions" and signed by a large number of faculty often have a "pretense to scholarly impartiality."

"Disinterested scholarship and advocacy do not mix well," he said. But the raw materials in such briefs "can vastly improve the quality and accuracy of originalist decisions."

At least one critic has accused originalists of practicing "law office history" - selecting data favorable to the position being advanced without concern for contrary information.

"To equate chambers' history with law office history is profoundly ignorant," he said. In the case of Heller, "If a contest seems one-sided, and I think it does, it's only because the historical evidence favoring response was overwhelming."

Historians who have published serious studies on the subject agree that the right to bear arms has long been understood as an individual right, Scalia said. And though historians can provide background information on such matters, judges are the legal experts.

"Ultimately it is the judges' call," he said."Figuring out the meaning of legal texts is judges' work."

Originalism is not a guarantee against judicial abuse, Scalia admitted.

"But originalism does not invite him to make the law what he thinks it should be, nor does it permit him to distort history with impunity," he said. The honest originalist will sometimes or often reach results he does not personally favor."All of this cannot be said of the constitutional consequentialists.

"If ideological judging is the malady, the avowed application of such personal preferences will surely hasten the patient's demise, and the use of history is far closer to being the cure than being the disease."

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