Scalia’s Sensible Jurisprudence

Originalism should reign on the Supreme Court

By Gregory A. DiBella

In a lecture at the Harvard Law School on October 2, Associate Justice Antonin Scalia offered a vigorous defense of originalism, a theory of constitutional interpretation which holds that the Constitution provides a set of principles and established meaning that do not change over time. Justice Scalia, in his inaugural Vaughan lecture entitled “Methodology of Originalism,” described this method as his preferred approach to the interpretation of the Constitution. He noted that this outlook seeks to examine “the intersection of history and constitutional law” in order to form a sound judgement. 

Justice Scalia insisted that his intent was not to “show that originalism is perfect, but that it is better than competing theories.” Originalism has its flaws, but it also gives a welcome caution to undue activism by the Supreme Court. Originalism grounds our current understanding of constitutional issues in the framework provided at the Constitution’s founding. As such, Justice Scalia’s lecture should serve as a timely reminder of our nation’s current need for such a level-headed viewpoint in examining constitutional issues. 

In the Vaughan lecture, Justice Scalia emphasized that consideration of the “commonly accepted meaning” of the specific language of the Constitution allows us to resolve much current controversy. For an example of the much-needed clarity that an originalist position provides, look to the recent District of Columbia v. Heller case. In Heller, the petitioners argued that the Second Amendment’s guarantee of the right to bear arms had an exclusively military connotation. Scalia wryly commented to his audience, “It was necessary and easy enough for the Court’s originalists to show this was not so.” In Heller, the court struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, and determined that handguns may not be banned by the District of Columbia. The court then held that “the activities [the Second Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” 

Scalia noted that the activities the Second Amendment covers are abundantly clear to those who “appropriately employ an historical inquiry to ascertain meaning.” The understanding at the time of the Constitution’s founding, Scalia observed, was that the right to “bear arms” did not extend to militia members alone. This widened scope would be immediately apparent to anyone who views the Constitution in its historical context. Documents contemporaneous with the Constitution, such as several state constitutions, even contain explicit provisions that a “person has the right to bear arms ‘in defense of self’”. 

More broadly, Scalia continued, the construction, “the right of the people,” in the Second Amendment reads in context “as if it were a pre-established right”, which, the English jurist William Blackstone notes, should be understood as a citizen’s guarantee of self preservation. In this light, Scalia argued that his majority opinion in Heller noted the obvious difficulties in regarding the “guarantee of the right to bear arms as referring only to militia.” Scalia concluded, “If the contest seems one-sided, it is because the evidence is overwhelming.” An originalist perspective, then, permitted the court in Heller to see current-day issues in reference to a historical body of knowledge that is anything but silent on the issue. 

However, the advantages of an originalist position extend beyond the resolution of problems regarding specific language employed in the Constitution. Originalism can provide a check on judges who would allow their personal opinions to affect their jurisprudence. As Justice Scalia helpfully summarized, “If ideological judging is a malady, the use of history is far closer to being the cure than being the disease.” The disease of judicial activism would be most likely moderated if the members of the court placed each issue in its historical reference point, as an originalist would advocate. 

Perhaps even more comforting than encouraging the use of judicial restraint, originalism allows the balance of state power that such activist courts have weakened to be restored. Specifically, an originalist philosophy places emphasis on the appropriate role of the judiciary in contemporary politics. As an example, consider Scalia’s words in his dissent in Romer v. Evans. Justice Scalia remarks, “Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.” 

Originalism can serve not only to rein in overzealous members of the Supreme Court but also reorient our understanding of the balance of power within government. Justice Scalia’s advocacy of originalism should invite each of us to reflect on whether such a judicial philosophy could benefit our nation by resolving our current conflicts in light of the Constitution’s authentic meaning.