On Antonin Scalia and the Problems With Originalism

“It is the appealing but ultimately confusing conflation of textualism with Constitutional conservatism, of facts and norms, which gives textualism its ideological power.”

I believe the late Supreme Court Justice Antonin Scalia’s textualist approach to jurisprudential interpretation to be the strongest iteration of the originalist position yet conceived. No small part of this is due to his nearly 30 years sitting on America’s highest court, and the voluminous decisions that bear Justice Scalia’s indelible stamp. Indeed, he is one of the most influential jurists of his generation, as testified to by the countless articles, some passionately admiring while others borderline derisive, published in the wake of his passing in early 2016.

While his juridical decisions constitute a living example of Justice Scalia’s textualist approach, it is made most explicit in his admirably concise and articulate essay “Common Law Courts in the Civil Law System” presented, alongside rebuttals and commentary, in A Matter of Interpretation: Federal Courts and the Law. Justice Scalia notes that there is a notable gap in American legal scholarship: namely, a settled account of how Judges are supposed to interpret the law. This is both unfortunate and dangerous given the important role that judges play in contemporary liberal democracies as interpreters of the common law.

Notably, Justice Scalia claims to be in favor of judicial review as a “desirable limitation upon popular democracy.” However, he is deeply concerned about the attitude judges take when engaged in this essential task. Most particularly, Justice Scalia takes issues with those judges who believe it is their responsibility to develop an “evolving common law” in line with a more general approach that takes the Constitution to be “living.” This testifies to the need to resolve such controversies and develop a genuine “science” of judicial (specifically statutory) interpretation if such a thing is possible.