Justice Scalia: “I Don’t Know That I’m Optimistic” About Restoring Original Understanding Of Constitution

Supreme Court Justice Antonin Scalia says he is not very confident that the Constitution can be restored to its original meaning and intent following the 2012 term.

In discussing his new book Reading Law: The Interpretation of Legal Texts, Scalia likened himself as the Lord of the Rings character “Frodo” who continues to fight the good fight uncertain of whether he will win in the end.

In discussing the book at Stanford University, Peter Robinson of the Hoover Institution quoted from the book:

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“Originalism does not always provide an easy answer, or even a clear one. Originalism is not perfect. But it is more certain than any other criterion, and it is not too late to restore a strong sense of judicial fidelity to texts.”

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His question to Scalia was, “This book, for that matter your entire career, represents a sustained, determined effort at restoration. Are you optimistic? How’s the project coming?”

Scalia responded, “That’s an unfair question, especially after last term. I dissented in the last 6 cases announced last term. So I don’t know. I don’t know that I’m optimistic. The fight is worth fighting, win or lose. You know, [like] Frodo in the Lord of the Rings.”

“Look, it, the problem is that the other approach is enormously seductive,” Justice Scalia continued. “Even for the average citizen it’s seductive, to think that the Constitution means what it ought to mean. ‘It’s a living Constitution. Anything I care passionately about, it’s right there in the Constitution.’”

“You know, people used to say when they don’t like something that’s going on, they say: ‘There ought to be a law,’” he said. “There used to be a comic strip that’d–there ought to be a law about people playing boom boxes in the park and stuff like that.”

“People don’t say that anymore,” Scalia said. “They say, ‘It’s unconstitutional,’ if they really feel passionately about it. And it is even more seductive to judges. It’s a wonderful thing to have a constitutional case and you’re always happy with the result because it means exactly what you think it ought to mean.”

The thoughts of the “originalism” perspective is simply trying to understand what the Founders originally had in mind when they framed the Constitution and then apply that to today. It is not trying to twist the words and meanings from our viewpoint today, which so many attempt to do.

The Heritage Foundation has an excellent article on the “originalist perspective.” David F. Forte writes:

How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its elections effect, originalist researchers variously look to the following:

  • The evident meaning of the words.
  • The meaning according to the lexicon of the times.
  • The meaning in context with other sections of the Constitution.
  • The meaning according to the words by the Framer suggesting the language.
  • The elucidation of the meaning by debate within the Constitutional Convention. The historical provenance of the words, particularly their elections history.
  • The words in the context of the contemporaneous social, economic, and political events.
  • The words in the context of the revolutionary struggle.
  • The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
  • Historical, religious, and philosophical authority put forward by the Framers.
  • The commentary in the ratification debates.
  • The commentary by contemporaneous interpreters, such as Publius in The Federalist.
  • The subsequent historical practice by the Founding generation to exemplify the under­stood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
  • Early judicial interpretations.
  • Evidence of long-standing traditions that demonstrate the peoples understanding of the words.

The reality is that if people disagree with something in the Constitution, the Founders did not set things in stone. They provided a means of amending the Constitution. However, that is a very difficult process and for good reason. Perhaps what is most amazing is how our own government writes laws and take power for themselves that either undermine the Constitution or were to be limited by it. If Justice Scalia feels uneasy about this, it makes me uneasy as well.

Watch the entire, fascinating interview by clicking below (The section dealt with in this article begins around 35:10):

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