Scalia’s compact case for originalism

Martha Minow, in one of a series of tributes to Justice Scalia published in the Harvard Law Review, recalls an interview he gave before a group of students and colleagues in Brazil:

I will tell you the killer argument in favor of originalism. I go to law schools just to make trouble. I give lectures and stir up the students. It takes several weeks for their professors to put them back on track. And what I tell them is: ask your professor. Your professor is probably not an originalist. That means he is a non-originalist. But that is not a philosophy of interpretation. It just means he does not agree with Scalia. But, then, what is your theory of interpretation? Scalia knows what he’s looking for. He’s looking for the understanding that the people had of the terms that were adopted. Once you show him what that understanding was — you got him. He is handcuffed — he cannot do the nasty, conservative things he would like to do to society.

How do you control your judges? You know what? Think about it. There is no other possible criterion except “what did this text mean, what did the people understand it to mean, when it was adopted.” You either adopt that or you tell your judges — wise, wonderful judges who went to Harvard, Stanford, and maybe even Yale Law School — you must know the answers to all these profound moral questions like homosexuality, abortion, suicide. … You either use originalism or you tell your judges: “You govern us, whatever you think is good is okay. Whatever you think is bad is bad.”

Some of the other tributes are also quite affecting. I especially enjoyed Chief Justice Roberts’ and Justice Ginsburg’s. Cass Sunstein’s was a bit unfair and too clever by half.

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