Originalist Justices: What the heck are they thinking?

Antonin Scalia is the person in government who I despise more than any other. The reason is that I know that he’s extremely intelligent, and thus I believe that he is inherently evil. I can always blame stupidity and ignorance for the horrible beliefs/decisions of others in government. But he’s got no excuse. In any case, he’s the poster boy for what is known as “originalism”. This means that he believes in a strict interpretation of the Constitution. Basically, the words that make up the Constitution should be taken literally, with no room for application to the culture and morality of the current day.

I really want to know the logic behind this. Do originalists really believe that if the Founding Fathers of this country were brought back to life, they would produce the exact same Constitution that they did over 2 centuries ago? This isn’t realistic. The rights denoted in the Constitution were based on the issues that affected people at that time. Clearly, freedoms of speech, religion, gun ownership, etc. were important in the 18th Century. Gay rights, sex equality, race equality, etc. were not public issues. To me, it’s downright obvious that as society changes, we need to gauge the intent of the Constitution and tailor it for the current day.

As an example, I think that denying gays the rights to parent, marry or have sex should be considered unconstitutional. Scalia would say: If it’s not in the Constitution, it’s not a guaranteed right. This is so illogical. We know that no one talked about homosexuality publically back then. So obviously there’s no way that these rights would be denoted in the document. But just reading the text should tell us that the equal treatment of all individuals by the law is a primary focus of the Constitution.

So, can anyone explain to me the logic behind originalism?

I think this is really a Great Debate.

The Constitution has been doing pretty well for over 200 years. There are mechanisms to change it and those have been used many times. It was designed to be hard to change for a reason. A constitution that flutters around in the social winds would be largely meaningless.

And although I support gay marriage, I certainly don’t belive it is a “right” in the current context. A right is what the Constitution and court rulings say they are and homosexual marriage barely has any status in most states let alone Constitional amendments or Supreme Court rulings.

I would say that the founders would be proud of what a good job they did. I would advise them to clean up the language in the second amendment and clean up some archaic remnants like the $20 rule and making blacks 3/5 of a person. Other than that, I would leave it largely intact. I think it is the greatest document ever written.

I agree that this easily meets the qualifications for a Great Debate.

As I understand it, the “originalist” view is that if the Constitution contains specific provisions by which it should be altered, then that is the method that should be used. This seems to be a rational and defensible position to take, even if not one that appeals to everyone.

Another consideration is that there are likely at any time in any country to be highly controversial issues. With a Constitution of limited scope, lawmaking with regard to most such issues belongs to the states. So, for example, California can treat same-sex marriage differently from Utah. It can make sense for controversies to be hashed out at a more local level - lots of different ideas can be considered and tried.

Moving thread from IMHO to Great Debates.

Umm… Scalia is a textualis, not an originalist. You might want to learn the difference before your rant…

Logic behind textualism? Simple. The law means what was written, not what people **think **was written or what they **wish **was written. Don’t like the law as it **is **written? Then change it. There are plenty of ways to do so.

Of course we’d have a different consitution than the one originally written. We **DO **have a different one than was originally written since there have been many amendments added to it over the years.

What was your point again?

There are two things to keep in mind, though, too. First, the constitution can be changed. Second is that, even if a right isn’t constitutional, it can be granted through legislation.

What originalists are thinking is that the Constitution, and laws in general, have meaning, and that what that meaning is can best be derived by looking at what the people who wrote the constitution and wrote the laws intended them to mean.

Well, Scalia says he’s an originalist, but some people claim he’s really a textualist. In other words, I guess you could say that if you focus on what Scalia intends, he’s an originalist, but if you actually read him, he’s a textualist. :slight_smile:

This has been discussed recently on SDMB. Some points:

  1. The Constitution made a distinction based on “free persons” and “other persons” - not on race. Free blacks were counted the same as other free persons.

  2. “Theee-fifths” was a compromise. Anti-slavery interest wanted this fraction low, to limit the congressional representation of the slave states. If you argue that this was a mistake - that the framers of the Constitution should have counted “other persons” equally with “free persons” - you are taking the pro-slavery side of this.

  3. The 14th amendment did “clean up” this language.

Scalia is a strict constructionist, but not an originalist. The OP would do well to inform himself on the differing schools of construction before offering his opinions.

As both Captain Amazing and John Mace have pointed out, strict construction means that the words of the Constitution are construed narrowly. One opposite view is that judges may read new rights into the Constitution.

The OP, and others of his ilk, may rejoice when those rights are ones he approves of. But he forgets - or does not know - that the same process was used to declare New York state’s labor laws unconstitutional. New York sought to limit the number of hours bakers could be forced to work by their employers. The Supreme Court ruled that New York could not place those limits… because the federal Constitution gave people a “right to contract.” That right was not written in the Constitution; the judges inferred it under the rubric of “substantive due process.” So, they concluded, based on the right to contract, New York could not force employers to give bakers time off after they had worked 13 hours in a day.

When you open the door to reading new rights into the Constitution, you open it for “rights” you like, and you open it for “rights” you don’t like. It is much better to read the Constitution and our laws narrowly, and then pass laws through the legislature defining precisely what you want the law to be.

From Justice Scalia’s book:

Scalia doesn’t ever say he’s an originalist.

Not so. (Weren’t you the guy who taught me he was a textualist in the first place. :slight_smile: )

I quote from p23 of his book, A Matter of Interpretation:

Strict constructionism would, for example, recognize a right to free speech and the press, but not to other forms of communication. Scalia refers to *Smith v U.S.*508, US 223 (1993) as an example of strict constructionism gone bad.


I should have clarified that Scalia calls strict constructionism a “degraded” form of textualism that brings the entire philosphy into disrepute. He says that the text should construed not strictly, not liberally, but reasonably.

However, in today’s juridical climate, it’s not a reach to characterize him as a strict constructionist in comparsion to some of his fellows.

But you’re right. I spoke (wrote?) too quickly.

Nope. The closest he’s come to that is to say he’s a textualist first, and an originalist second. By that, I think he means: interpret the text as it was written first, and where the text is unclear consult the original intent if it is available. But he offers lots of caution about going hog wild on originalism, mainly because it’s hard enough to determine what the guy was thinking when he wrote “x”, and impossible to know what the rest of the legislature was thinking when they voted on “x”. IOW, just because Smith published something about what he was thinking, that doesn’t mean Jones was even aware of that, orthatf he agreed with that published elaboration when he voted for it.

Justice Scalia does not believe in looking at intent, but how the text was understood at the time it became law. He is a textualist because he was would look at the text and an originalist because the way he looks at the text in through the original understanding of the text at the time it was written/passed*.

*It would be interesting to see how Justice Scalia would look at Amendment 27 it there was any controversial issue involved.

Interesting. Where would I find a clear, concise, plain English description (for dummies) or explanation of originalist/textualist etc philosophies? I have seen these terms before, but always in discussions where it is assumed everyone knows what they mean.

This isn’t bad (I only read the first half):


What about the judges that twist the Constitution into whatever they want it to say? There was one judge that tried to extend Constitutional rights to animals (gotta love the Ninth Circuit). One person can undo the work of the Founding Fathers and 200 years of Constitutional evolution. Does your feelings of despise apply to BOTH sides of the judicial philosophy spectrum?

As opposed to ignoring the Ninth and Tenth Amendments, because you don’t like them? Gee, that’s “strict construction”! :smack:

Not that this proves anything, but Googling “Scalia” and “originalist” yields 55,800 hits while “Scalia” and “textualist” yields only 17,700. This is about a 3:1 ratio. Substituting “textualism” and “originalism” with “Scalia” yields a similar ratio. Needless to say, there’s some debate on the subject.

In any case, what I’m hearing from many of you is that the Constitution, including the Bill of Rights, is basically a worthless document as far as human rights are concerned. As long as we have a legislature that is elected by the people, rights can be granted and taken away as the electorate sees fit. So then, tell me, what is the purpose of the Bill of Rights? Why grant people the freedom to practice religion, for example, when this could simply be legislated into law?

Of course I’m being facecious. My point is that certain rights are denoted in the Constitution (and Bill of Rights) for the simple reason that they cannot be taken away regardless of the culture of the present day. One day, the people of this country may decide to vote for politicians who promise to abolish Islam. Maybe they’ll pass a law saying that it is illegal for anyone to enter a mosque, for example. Could happen if another terrorist strike occurs. If the law passes, the Bill of Rights would be tested. Presumably, the Supreme Court would rule this law to be unconstitutional based on the 1st Amendment. Thus, the 1st Amendment protects the rights of the minority group that would never be able to successfully pass laws in its own favor. Within a democratic society, the majority never has to fear that its rights are being taken away. Thus, the majority never needs the 1st Amendment. Christians are never going to vote for politicians who seek to abolish the Church. And since Christians are the majority in this country, they need no Bill of Rights to protect them.

So what I’m saying is that the originalist argument is a sham. It’s convenient for Scalia to say that Texas law that made sodomy illegal did not violate the constitutional rights of the “criminals”. Sure, nowhere in the Constitution does it say that anal sex is a right. But based on the other rights specified, intelligent people should be able to fill in the blanks. Unless, of course, they have their own agenda.

I’m just waiting for the day that Scalia pulls a Limbaugh (maybe his mistress shows up at the abortion clinic, or a photo comes out showing Antonin, smiling, with a 12-inch dildo up his ass).

I suppose I can understand the rationale behind being a textualist. The law is the law and we cannot substitute what the legislature MEANT to say with what they actually DID say. This makes sense.

But the focus of the Judicial Branch is the interpretation of the law. Interpretation. If it was absolutely clear what the law said we wouldn’t need judges. Heck, we wouldn’t need many lawyers either. But much to Scalia’s chagrin, two people with equally brilliant legal minds can look at the exact same law each determine that it means the exact opposite of the other person’s interpretation.
Take for instance, this law: Be it resolved that woman without her man is nothing.

Granted it’s a stupid law. That’s not the point. What does it mean?

Scalia says “It’s obvious to the most simpleminded county court judge or even one of the other Justices. ‘Woman without her man, is nothing!’ The law is clear in its statement that men are superior.”

And Ginsberg dissents. “My…ahem…esteemed colleague seems to be losing more than his hair. ‘woman: without her, man is nothing.’ The law is telling that which should be common sense: woman rule and men drool.”

And now what? Why can’t we go back to what the legislators’ goal was when they created the law? Wouldn’t that help solve the problem? Not even a “gosh, sorry about that. Here’s what we meant” letter from the writer of the statute. That’s interpretation which isn’t the job of the Legislature. If we have meeting notes from the committees and it’s clear they wrote this up on Mother’s day to honor the grandmother of the committee chair, wouldn’t that go a long way to helping determine what the law actually says?

If you’re going to be a textualist, how do you rectify that with the fact that you MUST interpret things. That’s your job. And if you must interpret things, that means, by definition, the words themselves aren’t clear!
If you are a textualist, as horrible as this would be in tying up BOTH the courts and the legislature, wouldn’t it be better to say “It is not possible to unambiguously determine this law really says. We must send it back to the Revisor of statutes for revision” than saying “I am the master of all nuances in the English language. I can tell you unequivocally that law X states Y decision”?