The era of your dictionary should match the era of the text you’re reading, U.S. Supreme Court Justice Antonin Scalia said plainly to a Philadelphia audience Monday evening.
That sentiment goes to the heart of originalism, the theory that texts should be read according to what the language meant at the time they were written.
Since Justice Clarence Thomas joined the court, there are two originalists on the bench, said Scalia, who classifies himself as one, “and you can’t throw away two votes.” He was answering a question about how scholarship has changed over the 25 years since he was confirmed.
Making his own addition to the canon of legal scholarship, Scalia has written a book with Bryan A. Garner, longtime editor of Black’s Law Dictionary, advocating for originalism. In it, Garner added the section on dictionary usage, Scalia said, speaking at the Union League in Philadelphia to promote the book, Reading Law: The Interpretation of Legal Texts. He was hosted by the Federalist Society.
People often ask Scalia when he became an originalist, Scalia told the group gathered in a room with oak paneling hulking over a parquet floor, “as though it’s some newfangled idea.”
Tertullian did it, he said. Blackstone did it. “It’s the natural way to interpret a text,” Scalia said, because it requires understanding what the text meant when it was written.
Language evolves over time, so to get to the meaning of a document written centuries ago requires an understanding of the era’s vocabulary. At one time, artificial meant imaginative and awful meant awe-inspiring, Scalia said.
Although many judges want to be originalists, he said, “they don’t know how to do textualism or originalism because it’s never been taught in law school.”
Textualism is the macro complement to originalism — the idea that the plain text of a statute, not the intent of the legislators who passed it, reveals its meaning.
In the book’s preface, Scalia and Garner introduce themselves this way: “Both your authors are textualists: We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”
The intent of the book, Scalia said Monday, is to guide the bench back to the “correct” statutory and constitutional construction.
“Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts,” the book begins.
Scalia tempered his view on Monday, saying, “Although I believe in original meaning, I also believe in stare decisis.”
Some of the court’s decisions with which he disagrees have affected other provinces of the branch.
The judicial nomination process, for example, has become an increasingly adversarial political drama over the last couple of decades. Scalia said, “I was confirmed 98 to nothing. I couldn’t get 60 votes today.” The difference is, he said, “I think people have figured out what the Supreme Court does.”
Starting with the Warren court, when Chief Justice Earl Warren presided in the 1950s and 1960s, the bench began rewriting the Constitution, term by term, argued Scalia, who disparaged the theory of a “living Constitution.”
Operating under the idea that the Constitution evolves with society, the appointment process for justices ought to be a political one, Scalia said. “It’s like a mini Constitutional Convention” every time a justice is confirmed, he said.
Asked if he admired any particular justices by a member of the audience after delivering his brief remarks, Scalia named Justice John Marshall Harlan II, in whose chair he now sits, and Justice Robert Jackson.
“He wrote like an angel,” Scalia said, reciting a passage from Jackson’s dissent to the landmark case upholding the government’s internment of Japanese-American citizens during World War II.
“A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens,” Jackson wrote in 1944. “The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Scalia added that Oliver Wendell Holmes is “greatly overrated.”
In his remarks, Scalia told the group that the book is intended to help the bench, but also to help the bar.
Everything he writes — opinions included — Scalia said, is “meant to be normative and not descriptive.”