Noah: Issues with Originalism

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 Although I overwhelmingly agreed with Scalia’s rationale for his textualist approach to interpretation, I fundamentally disagree with many points he raises against a living constitution and for originalism. 

Scalia frames the difference between two by claiming “is not that between Framers’ intent and objective meaning but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning” (38). He also states that he consults influential historical writings because they display how “intelligent and informed” people of the time originally understood the constitution” (38).

All of this is important background for establishing his primary arguments against an evolving constitution.

Firstly, Scalia claims that it proponents generally impose “constraints—new inflexibilities—upon administrative, judicial, and legislative action” (41). However, I’m not entirely convinced that constraining legislative action is inherently a bad thing. 

As examples of previously undecided issues that are currently unable to be reviewed on behalf of an evolving constitutional interpretation, Scalia raises the following:

- Prohibiting pornography

- Imposing property requirements as a condition of voting

- Prohibiting anonymous campaign literature

Yes, interpreting the constitution in a current light would provide constrain, in that a we are passed the point of a legislature/judiciary being able to assess these issues. Yet, on a personal freedoms basis, each these decisions provided individual liberties (and some rights) that should absolutely be granted. The issues at stake Scalia suggests worth considering are would restrict personal liberty if revisited, and become antithetical to his general thesis.

Another disagreement I have with Scalia surrounds his presentation of originalism as under a unified and coherent understanding. Scalia, in attempting to evade Dworkin’s analogy, claims that “unlike animal populations, however, “moral principles,” most of us think, are permanent. The Americans If 1791 surely thought that what was cruel was cruel, regardless of what a more brutal future generation might think about it” (146). The permanent “moral principle” in question is the matter of cruel and unusual punishment, but surely, there were disagreements about the nature of cruel and unusual punishment and its constitutional ramifications within the “intelligent and informed” populous of 1791. This ambiguity raises the same point that Scalia makes about legislative history: lawyers will spend their time parsing history notebooks to reach their intended constitutional interpretation rather than taking constitutional principles and applying them to our general understanding of current issues. I find the more compelling interpretation set forth by Dworkin, where “the key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules” (122).

Finally, I take issue with Scalia’s interpretation of the child exempt from facing her presumed abuser eliminating a liberty that previously existed. Special cases should be made for constitutional rights when appropriate. Schools banning firearms on campus may eliminate one’s second amendment right, but in this epidemic of school shootings, a “reasonable” interpretation of data should weigh the right to life over unrestricted gun possession. Scalia is clearly not interested in entertaining the minutia of the situation, assuming the child would lie about her experience: “It is difficult to accuse someone to his face, particularly when you are lying” (42). But the reasonableness to which Scalia so proudly holds in his interpretation of textualism is not given charitably to broader situations. 

Comments

  1. Henry LongFebruary 2, 2023 at 12:26 AM

    I agree with your assessment that "surely, there were disagreements about the nature of cruel and unusual punishment and its constitutional ramifications within the “intelligent and informed” populous of 1791." That said, wouldn't the same apply to our modern understanding today?

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