Get Ready for a Flood of Falsehoods About Originalism

Get Ready for a Flood of Falsehoods About Originalism

The dominant form of originalism entails interpreting provisions of the Constitution according to the “original public meaning” they bore when they were adopted. (Textualism is the same principle applied in statutory interpretation.) You wouldn’t know that from what journalists write about it. Linda Greenhouse, who covered the Supreme Court for decades and should know better, claimed that Justice Antonin Scalia (my father) believed “the only legitimate basis for interpreting the Constitution is the original intent of its framers.” Law professor Barbara McQuade recently wrote that originalists seek to understand what is “believed to be the original intent of the framers.” There are countless other examples of this conflation of intent with public meaning. What’s the difference? For one thing, when seeking to understand the intent behind a law, a judge or lawyer may place greater weight on legislative history than on text. That method undermines the ideal that America is a nation of laws rather than men. As my father put it, “We are governed by laws, not by the intentions of legislators.” What’s more, scouring committee records and debates to determine intent “is more likely to confuse than clarify”; another judge compared this approach to entering a party and looking over the heads of the crowd to find your friends. That is one reason why originalists and textualists believe “we are bound by what [laws] say, not by the unexpressed intention of those who made them.” Another common misrepresentation of originalism and textualism is conveyed in the Daniel […]

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