(Camille): Intentional Vagueness, Forms of Originalism, and Moral Readings of Text

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Scalia points out that the Constitution is intentionally hard to change, which Tribe concurs with when he quotes that it is a document “designed to endure the ages” (89). The reason the framers could trust its consistency and longevity, however, is the Constitution’s balance between naming explicit, concrete, and enumerated protections with its more abstract and broad set of principles. This distinction becomes important when considering ideas of evolving interpretations and originalism.

There seem to be inherent contradictions between Scalia’s textualism and so-called originalism. To illustrate this point, the distinction between semantic and expectation originalism is important. Semantic originalism looks at text through the framework that they should be read to say what “those who made them intended to say” (119). Alternatively, “expectation” originalism holds that clauses should be understood to have the consequences that those who made them expected them to have. These distinctions can be applied to the case of Brown. The members of Congress that voted for the 14th amendment intended to say “equal protection of the laws” when they ratified that language. However, as folks who sustained racial segregation in schools, they probably didn’t expect their language to strike down racial segregation in schools as unconstitutional. Therefore, an “expectation” originalist would think that Brown was decided incorrectly because the drafters of that amendment didn’t anticipate its use for desegregation. In this way, “expectation” originalists follow the wrong inquiry: they consider what the framers intended to do or achieve vs. what the framers intended to say.

Although Scalia claims to fall more under the category of a semantic originalist, his confidence and ruling on the “cruel and unusual punishment” case illustrates that perhaps he is more considering the expectations of what the founders considered to be “cruel and unusual” vs. their framing of the principle.

It seems as though “expectation” originalism is incompatible with the very nature/intention of the Constitution. As we already established, the Constitution is meant to endure and contains intentionally vague and abstract language around certain protections and liberties. The framers “knew how to be concrete when they intended to be,” yet left many things in abstract form, likely anticipating and expecting that generations would change (but still keep certain guiding principles intact). This inclusion of both explicit and vague language/protections lends itself to the idea that the Constitution was intended not to be “a faded snapshot of a bygone age, but instead a set of principles whose understanding may evolve over time” (81).

Interpretations and applications of the Constitution must be grounded in the text, but since the text is often “abstract principles rather than concrete or dated rules,” the application requires fresh judgment through a moral and principled reading of what those principles meant/mean.

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