Livia: Originalism: A Preventative Method of Interpretation?

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A Matter of Interpretation speaks to Scalia’s views on Constitutional interpretation. While originalism, the form of interpretation that Scalia advocates for, is conceived as a mechanism to read and properly apply the “supreme law of the land”, it appears that one of its primary purposes is to prevent other proposed methods on how to interpret the Constitution from becoming the dominant line of thinking. To help explain what I mean by this, let’s consider another interpretation style: The “Living Constitution” theory. This viewpoint considers the Constitution as an adaptable document that evolves to meet the distinct circumstances of each modern society (41) Such a theory is in direct conflict with Scalia’s originalism, where the Constitution is viewed as more static, and its text is read based on the original public meaning.

One of the main issues that Scalia identifies with the “Living Constitution” method is that it neglects the premise that Americans are entitled to a certain base line of rights from the text of the Constitution. If the Constitution molds to modern circumstances, as the theory suggests, the rights which a citizen is entitled to by the Constitution are based on the modern environment. However, if one’s modern environment changes, the rights which a citizen was previously entitled to no longer exist. One’s rights are now dictated by the new society. In certain cases, a new society might expand one’s rights, but in other cases, the new society might severely diminish your rights. Applying originalism protects governments from usurping citizens rights in a legal manner and better enables citizens to recognize the rights and protections they are entitled to from the Constitution. While I’m not a huge fan of long quotes, I think the line of thinking I attempt to articulate is best expressed by Scalia: “It makes a lot of sense to guarantee to a society that “the freedom of speech you now enjoy (whatever that consists of) will never be diminished by the federal government; it makes very little sense to guarantee that “the federal government will respect the moral principle of freedom of speech, which may entitle you to more, or less, freedom of speech than you now legally enjoy (149)”.


Comments

  1. Henry LongFebruary 1, 2023 at 10:27 PM

    Another long quote to support your analysis of Scalia, this time about the Eighth Amendment: "The Americans of 1791 surely thought that what was cruel was cruel, regardless of what a more brutal future generation might think about it. They were embedding in the Bill of Rights their moral values, for otherwise all its general and abstract guarantees could be brought to nought" (Scalia 146).

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  2. SambhavFebruary 2, 2023 at 10:14 AM

    Agree with most of what you're saying in your blog, except for the fact that "one of its (originalisms') primary purposes is to prevent other proposed methods on how to interpret the Constitution from becoming the dominant line of thinking." I think Scalia would argue that the primary purpose of originalism is because it is the superior method of interpretation. He believed that originalism is the only way to accurately interpret the Constitution, as it takes into consideration the original meaning.

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  3. Livia HughsonFebruary 2, 2023 at 12:19 PM

    Sambhav, i agree with you. I don't think that Scalia would argue that originalism's primary purpose is to prevent other forms of interpretation from coming into fruition. Personally, I have found that one its most powerful abilities is to do just this. Moreover, to respond to your point, though I believe that Scalia recognizes originalism as the superior method of interpretation, however I do think Scalia recognizes the limitations or originalism. In one of his most profound works, he describes it as "the lesser evil". A Matter of Interpretation and the point I allude to above, demonstrates originalism strength not necessarily as a stand alone method, but as a better interpretation method relative to others.

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