Faith, Beer, and Other Things That Interest Geoff

Scalia on Constitutional Originalism

Hat tip, again, from John Rabe. From his blog entry:

In the speech, Scalia makes an essential point. Originalism (which is what Scalia calls his own interpretive philosophy and means "what did it mean when it was enacted?") is really the only theory of interpretation there is. The others are not even philosophies in any real sense:

What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that....[t]here really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

...What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of.