Here’s an unsuccessful, if slightly modified, letter to the editor of The Tennessean:
Stacey Barchenger, Travis Dorman, and Stephanie Norton described the late Associate Justice Antonin Scalia’s originalism as an interpretive heuristic “based on the intent of the Founders.” This would be a surprise to Justice Scalia.
To the contrary, Justice Scalia was highly skeptical of relying on legislative intent when interpreting law. He was a textualist – meaning that he focused on the words on the pages of the Constitution, or in a code book, when interpreting law – and an originalist – meaning that, when the meaning of a law was not clear from the face of the text, he consulted historical authorities to find out what the words in the text meant at the time they were written.
Imagine yourself as a judge, and both lawyers briefing an issue in a case before you present transcripts from a legislative record to support their arguments for how to interpret a law. Suppose the record includes transcripts of floor speeches given by lawmakers on both sides of the aisle who present conflicting points of view. Should you, as a judge, give effect to either floor speech when interpreting the law? Indeed, whose remarks should control in such a scenario? Contrary to claim of Barchenger, Dorman, and Norton, the larger-than-life contrarian on the nation’s high court spent his career trying to defeat legislative-intent “originalism” because it was so unreliable and fraught with potential for error.
Because “We the People” ratified the Constitution after the Constitutional Convention, and thus the United States government derives its legitimacy directly from the people, what words meant to “the people” at the time the Constitution was written should control when interpreting it, in Justice Scalia’s view. His opinions are thus replete with citations to period dictionaries that help divine the popular meaning of words at the time the document was written. This is the “original public meaning” philosophy of interpreting law; it is quite different from interpretation based on the original “intent of the Founders.”
Textual originalism recognizes, first, that people democratically elected their representatives, and, second, that the people’s will is thus best understood by the public meaning of the final text of a law at the time it was enacted. Thus, in Justice Scalia’s view, whatever the words in a law meant to the people (not the drafters) is what should control when a judge later interprets that law, as this approach best preserves the consistency and integrity of democratic institutions.
If you missed Judge Neil Gorsuch explaining the difference between original-public-meaning originalism and legislative-intent “originalism” in his confirmation hearings on March 22, I highly recommend that anyone read Justice Scalia in his own words on this topic.
Afterthought
One can make a non-trivial criticism of Justice Scalia’s seemingly hypocritical reliance on the Federalist Papers when he interpreted the Constitution. It is true that Justice Scalia understood the structural features of the Constitution through the lenses of Hamilton, Madison, and Jay. The Federalist Papers, however, were anonymous essays circulated publicly in New York newspapers prior to the Constitutional Convention. Thus, we can safely rely on the words in the Federalist Papers to interpret the Constitution, without compromising textual-originalist principles, because (1) the words were communicated to the public, (2) the words had meaning to the public, and (3) the public bought in to the notion of a new Constitution, as evidenced by their ratification of the document after the Convention. Reliance on the Federalist Papers is not akin to, say, relying on the notes from the Constitutional Convention debates, where only delegates ever really heard what happened. Reliance on the latter is far closer to what Justice Scalia would consider a misstep in constitutional interpretation than reliance on the Federalist Papers.