Interpreting Original Meaning

Within the same year of corporate lawyer Lewis Powell’s memo and his appointment as Supreme Court Justice, a new organization named “The Business Roundtable” was formed. This organization is only limited to CEOs such as its founding chairman W. B. Murphy of Campbell Soup Corporation. TBR now has 160 members which include Phil Condit of Boeing, John Dillon of International Paper, John Snow of CXS Transportation ( later George W. Bush’s Treasury secretary), Drew Lewis of Union Pacific Corporation (later Reagan’s Secretary of Transportation). Other members are the heads of Aetna, Alcoa, Allstate, American Express, Archer Daniels Midland, AT&T, Dow, FedEx, GE, General Motors, JP Morgan, American Express (list of BRT members).

The Reagan Administration seized political power in 1981 by deception and advanced this new theory of constitutional interpretation called “Originalism.” Antonin Scalia, Clarence Thomas and Robert Bork are the most famous judges known to subscribe to this theory of legal interpretation. Pseudo-Conservatives argue this school of constitutional interpretation most closely reveals the true meaning of the constitution and results in sound court decisions that maintain the authority of the people. Originalism, they claim, guarantees consistent court rulings based on a clear and accurate understanding of the constitution’s meaning instead of a judge’s personal beliefs and prejudices. These extremist ideologues claim that Originalism produces clear, predictable, impartial, and stable court judgments. Furthermore, Originalism insures that a judge’s ruling will remain within the domain of the judiciary and not the legislature, or executive so as to preserve the balance of power between the three branches of government.

Originalism is a mixture of other theories of interpretation, language meaning theory, and philosophy of law combined to interpret constitutional law.

Original Intent is a theory of law by which one is to interpret a legal text. The basic approach is to interpret legal text to determine what its author intends to achieve with a particular law even if the intent contradicts the actual wording, or legal text. Here the author’s intended purpose of a law is more crucial than the written historical text itself. Intention determines semantic meaning that in turn creates the legal meaning. Not all constitutional Originalists accept this “intensionalist” theory of interpretation.

Original Meaning is a closely related, but very different theory of legal interpretation that understands the meaning of a law as identical to the plain meaning of legal text at the time it was ratified and became law. Original Meaning is actually a combination of three legal theories of interpretation: 1.) Legal Formalism, 2.) Legal Positivism, and 3.) Textualism. First, Original meaning theory analytically separates empirical legal reasoning from normative issues and political concerns. Authorial subjective intent is irrelevant. Originalism assumes legal formalism, which is concerned with what the law “says” and not with what it “should say.” True interpretation of law requires analytic understanding of language, logic, and definitions. Secondly, this theory of legal interpretation is also positivist because it views law as strictly an institutional, or bureaucratic process of government procedure. Again, intent of the author is irrelevant. Thirdly, the theory of Original Meaning is a form of Textualism that holds that a legal text’s ordinary meaning (not just dictionary definitions) as understood by a reasonable person’s reading of that text should determine interpretation. Non-textual information such as intention, purpose, system objectives, designs, fundamental values, or goals are external --ex post facto-- to the interpretative meaning of law. Subjective “intention” is expelled from legal reasoning by these three different interpretive criteria of Originalism.

This description is a very abstract summary of Originalism. Justice Antonin Scalia is currently the most well known representative of this theory of constitutional interpretation. And from his scholarly speeches on the lecture circuit about Originalism, we can better understand how this theory guides his interpretation of constitutional law and its meaning.

Legal text is the proper domain of legal interpretation in which the objective text transmits the constitution’s message. The text is the object of interpretation:

”I am first of all a textualist, and secondly an Originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words”(All quotes taken from, "A Theory of Constitution Interpretation" Remarks by Justice Antonin Scalia at The Catholic University of America Washington, D.C. Oct. 18, 1996).

”The words are the law,” rule anchors the law to a fix point of meaning avoiding transitory interpretation of the constitution. Scalia is concerned that changing interpretations of law will result in a weak relativistic constitution:

”Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times”(Ibid.).

Consequently, Originalism claims, that appealing to what the constitution “ought” to be goes beyond the static text into the realm of normative subjectivism (Ethics), and legal relativism (Anarchy) that result in superfluous rights not found in the original text. The goal of constitutional interpretation is not what “ought to be” constitutional law, but what empirically ‘is’ constitutional law in text:

”… this development, away from originalism, has [sic] occurred within the past forty years. [sic] Today, we say in our opinions. We believe, the court believes, and worst of all the American people believe that not only the 8th amendment but the whole Bill of Rights, the whole Constitution, "reflects the evolving standards of decency of a maturing society." Or, to put it more simply, the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean. And so, all sorts of rights that clearly did not exist at the time of the Constitution today”(Ibid.).

Those who view the constitution capable of change are “evolutionist” and even the concept of judicial review--that the Supreme Court can nullify a statute unconstitutional --is the result of misinterpreting the role of the Supreme Court as a court of “Super-Law.” This was the original disposition of the Constitution. Further, he warns, “”I think we depart from the traditional view of the constitution[sic] at our own risk.” So for Scalia, interpreting the constitution is strictly non-normative [Non-ethical]: culture, democratic society, politics, and current social trends are ex post facto to the written legal text. Shockingly, but consistently, Scalia said, “I'm not very good at determinating what the aspirations of the American people are. I am so out of touch with the American people. I don't even try to be in touch”(Ibid.).

In this speech at The Catholic University of America Washington, Scalia presents a challenge to non-Originalist critics:

“Originalism has a lot of problems. It's not always easy to do. Sometimes it's very hard. Sometimes it's awful hard to tell what the original meaning was. I'll acknowledge all of that. But the real problem is not whether it's the best thing in the world, but whether there's anything better”(Ibid.).

Therefore, the challenge proposed is to answer the normative question, “Is there anything better?”