Constitutional Interpretation the Old Fashioned Way
Justice Antonin Scalia delivered the following remarks at the Woodrow Wilson International Center for Scholars in Washington,
D.C., on March 14, 2005.
It’s a pizzazzy topic: Constitutional Interpretation. It is however an important one. I was vividly reminded
how important it was last week when the Court came out with a controversial decision in the
case. And I watched one
television commentary on the case in which the host had one person defending the opinion on the ground that people should not
be subjected to capital punishment for crimes they commit when they are younger than eighteen, and the other person attacked
the opinion on the ground that a jury should be able to decide that a person, despite the fact he was under eighteen, given the
crime, given the person involved, should be subjected to capital punishment. And it struck me how irrelevant it was, how much
the point had been missed. The question wasn’t whether the call was right or wrong. The important question was who should
make the call. And that is essentially what I am addressing today.
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists.
Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was
adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do
not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many
of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when
it was adopted.
This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a
talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is
some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”
Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least
purported to be an originalist. If you go back and read the commentaries on the Constitution by Joseph Story, he didn’t think the
Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted.
Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is
a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that
they will accommodate events that you do not know of which will happen in the future.