Constitutional Interpretation: Originalism and Textualism (Scalia) Part 1

Notes and Thoughts on Interpreting the Constitution by Antonin Scalia 

I apologize for typos and such, I haven’t had time to thoroughly proof read this post yet.


So, I’m writing my philosophy of law paper on constitutional interpretation; “originalism” in particular.  At first, I thought the whole idea of originalism kind of silly, but after doing some reading and thinking it’s clear that there are some important reasons to consider some brands of originalism.  It really comes down to what kind of originalism we’re talkin’ ’bout.  Originalism can be divided roughly into two camps: original intent and original textual meaning.  Those in the original intent camp derive their interpretation from trying to figure out what the particular issues of the time were and interpreting the constitution in relation to that.  

There are quite a few general problems with this view which I won’t go into because I’m focusing on textual originalism.  But because I know how curious you are are just list a couple of the problems:  1. who’s intent? (the particular framer that wrote it? all the framers together? the intent of the state legislatures that ratified it?  the intent of the small group of white male landowners who voted in the representative legislature?) 

2.   Even if we answer this question, how can we ascertain what was in the minds of the group who’s intent counts?  and that’s just the tip of the iceberg.   We still have to justify why these peoples intentions should be held as infallible and true for all time.   Enough of that, lets move on to Scalia’s specific arguments against intentionalism, which have to do with his concept of the rule of law.

Scalia, the Rule of Law, and Intentionalism 

Scalia begins with a basic question:  What is the objective of legal interpretation?  In addressing this question he systematically dismisses different intentionalist arguments.
1.  Should judges interpret what the legislature intended by the law or the meaning of the words?  Since there is no way to go inside the head of legislators it makes more sense to go by the textual meaning.

2.  Should new statutes should be interpreted in such a way that makes them consistent and compatible with existant law.  No, we should not assume that the legislator, when drafting the law were aware of every other existing law and how the new law might fit.  Nor should we assume that it was their intent for there to be harmonization.  If we really want to know was is meant by the law we need to interpret the meaning of the text.  We shouldn’t hypothesize about the goings-on inside the heads of others.  

3.  This next point concerns conception of what the “rule of law” ought to be.  We want applications of the law to be predicable for the general public.  If a law is enacted and seems to mean one thing but is later interpreted as meaning something else, this makes it difficult for people to know what behaviours fit within the law.  They may act in a way that seems to conform with the law only to find out that the legislature had in mind some other intent, and end up unknowingly contravening it.  For the sake of predictability we ought to interpret them as the text indicates, not as we might hypothesize someone to have intended.  

The other objection related to desiderata of the rule of law is that, well, we prefer the rule of law over the rule of an individual.  If we interpret according to what a law writer intended instead of the textual meaning then we are ruling according to an individuals desires not according to the law.  “Men may intend what they will; but it is only the laws that they enact which bind us”.

There is another related question here about the role of the judge in a legal system (which, incidentally, the Constitution says nothing about).  If judges are permitted to interpret law in terms of perceived intent, we should expect that the intent they will read into the law just happens to coincide with their particular political/ethical views.  If this is the case we lose out on another desiratum of the law: impartiality/objectivity.  Judges, interpreting based on intent, will be inclined to interpret laws as what they think they ought to mean rather than what the text means.  

Scalia’s Examples of Legislative Intent Being Applied Instead of Original Textual Meaning:  Church of the Holy Trinity v. US and A (1892)

Vs. Intentionalism
The church contracted an Englishman to be its rector and pastor (hehe! he said “rector”).  The Circuit Court ruled that this violated a statute against “assisting or encouraging the importation or migration of any alien…under contract or agreement…made previous to the migration to perform labour or service of any kind.”

Later the Supreme Court overruled and reversed the decision because extra-textual indications indicated that “the statute was intended to apply only to manual labour”; thereby making permissible entry on rector (hehe) duties.

Then, the Court goes on, at length, to say that because the US and A is a religious nation that “the construction invoked cannot be accepted as correct.”

Scalia agrees that the first justification–the appeal to extra-textual evidence to guide interpretation of textual meaning was justified, but he disagrees that the court should have appealed to their belief that US and A is a religious nation to nullify the validity of the law as applied to rectors.

Next, we get more on Scalia’s notion of the rule of law.  He believes in judicial deference, that is, the judiciary should not reinterpret a law in such a way that constitutes a change in the law.  In such matters, the judiciary should defer to the legislature.  The role of the judiciary is not to make law.  “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former…”

Vs. Constructionism

Again, Scalia continues his arguments in favour of deference by opposing a constructionist view.  He characterized constructionism as a the permissibility of a judge to consider “not only what the statute means abstractly, or even on the basis of legislative history, but also what it ought to mena in terms of the needs and goals of our present day society.”  I.e. “the law means what is ought to mean”.

This type of judicial “activism” runs counter to democratic theory.  It is not the role of judges to interpret laws in ways that might be in line with a current moral view.  That is the role of the legislature.  By removing that role from the elected representative, judges are undermining democracy–even if the ruling is desirable to er’body.  If such a decision is desirable to er’body then the law can be revised in the legislature.  

Finally, decisions that read into statues “intentions” or are interpretations that don’t directly follow the most reasonable meaning of the text as it was written are weakening the predicability and stability of the rule of law.  If a law’s meanings change over time according to individuals’ interpretation, that is rule of man, not of law. 

Part 2:  Textualism–Scalia’s Positive View on Constitutional Interpretation

see next post

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