In the Agora: Scalia the Originalist

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April 16, 2005

Scalia the Originalist

Laurence Hammack files a report in The Roanoke Times about a recent speech of Justice Scalia's on originalism. He writes:

Speaking at Washington and Lee University, Justice Antonin Scalia cited as an example his vote upholding the right to burn an American flag as a form of free speech. To end up in the majority of that controversial 5-4 decision, Scalia applied his so-called "originalist" interpretation of the Constitution, which adheres strictly to what the framers of the document had in mind more than 200 years ago.

Hammack clearly misunderstood Scalia's position because it directly contradicts the "originalist" quote from Scalia in the next sentence: "You look to the text and you say: What did that text mean to society when it was adopted?" What the text meant to society - in other words, what the language generally meant at the time of its passage - is decidedly different from trying to determine "what the the framers. . . had in mind." Although originalism is not an exact science, it seems to be easier and more objective than the "original intent" that Mr. Hammack alluded to.

Toward the end we see this quote from Scalia: "Conservatives are just as likely to distort the original meaning of the Constitution for their aims as liberals are." Indeed, the appeal of defining the Constitution under one's own meanings can seduce both conservatives and liberals alike. Unfortunately some conservatives have a knack for steeping their reasons in originalism when it suits them, and dropping it when it doesn't. The effect is to undercut their argument with intellectual dishonesty and sully the originalist philosophy. (The Times-Dispatch also offers an article on the speech.)

Posted by Joshua Claybourn at April 16, 2005 08:54 PM

Comments

Aside from determining just who a conservative might have been then or now, I'm wondering if Judge Scalia gave any examples of "conservatives" judging cases dishonestly. If not, perhaps you or your readers could supply a case or two where they believe that occured.

Posted by: Anonymous at April 17, 2005 09:56 AM | permalink

I think Scalia was referring to conservative pundits and activists that engage in intellectual dishonesty. At least that's how I interpreted it and how I was using it. I'm sure that some conservative judges have as well, but the examples don't come as readily to me.

Posted by: Joshua Claybourn at April 17, 2005 10:07 AM | permalink

I don't think the Framers ever equated ritual arson with speech.

Posted by: Alan K. Henderson at April 18, 2005 04:57 AM | permalink

If we are suggesting flag burning as a value held by originalists I don't think that would hold up. I can't imagine what the Framers would have done to someone burning their flags but I doubt it would have been pleasant.

Posted by: Anonymous at April 19, 2005 04:17 PM | permalink

However, had the matter come before a federal court back in the day after the 1st Amendment was
ratified, and the issue had not been mooted by the fellow's tar and feather coating nor his ride on a rail out of town, the judges would have to defer to the "Congress shall make no law" language. The corruption of England and their judges made the right of free speech (that was generally against some government tax or policy)as needed as that of a free press. There really was a Riot Act if you will recall, in England.

Posted by: Anonymous at April 20, 2005 07:21 PM | permalink