June 17, 1996

Rev. Robert A. Sirico & Justice Scalia – June 17, 1996

Over the weekend, we were saddened to hear of the passing of Supreme Court Associate Justice Antonin Scalia, a giant of conservative jurisprudence, stalwart champion of originalist interpretation, and as such a true friend of the Constitution.

He was also a friend of the Acton Institute, and we are proud to share the address he delivered on June 17, 1997 at the Acton Institute’s Seventh Anniversary Dinner in Grand Rapids, Michigan. He titled his remarks “On Interpreting the Constitution,” and in them he explained his originalist approach to Constitutional law, and the severe drawbacks that he saw with any alternative method of interpretation. He described himself thusly:

I am one of a small but hardy breed of interpretists left in the world who are called “textualists,” or “originalists”… People ask me, “when did you become a textualist? What caused you to become a textualist?” You know, sort of like “when did you begin eating human beings?” As though it’s some weird thing, you know? I mean, I—when did you begin to become not a textualist? You know, you have a text, you should read the text! …I’m not kidding, I’m always baffled at the amazement of these people – “well, what a novel idea! You’re a textualist!”

I treat the Constitution the way laws, statutes have always been treated – we try to figure out what it meant when it was adopted.

Scalia’s pointed and witty observations reveal a man with a brilliant legal mind coupled with a wonderful sense of humor, and the arguments that he laid out in 1997 are just as relevant today, if not more so. During his address, he expressed a sense of pessimism about the state of the American legal culture and jurisprudence; but if he was a pessimist, he was surely a very jovial pessimist. His wisdom, his wit, and his steady presence on the Supreme Court will be deeply missed. We have remastered the audio of his 1997 remarks, and present them via the audio player below.

Democracy In America

Democracy In America

In 1831 Alexis de Tocqueville, a young French aristocrat and ambitious civil servant, made a nine-month journey throughout America. The result was Democracy in America, a monumental study of the life and institutions of the evolving nation.


  • http://rdmckinney.blogspot.com Roger McKinney

    There is nothing more dishonest than the socialist interpretation of the Constitution. According to Judge Napolitano that nonsense began with Woodrow Wilson.

    The socialist judges are dishonest in that they always interpret Congressional legislation using originalism, just never the Constitution.

    Socialist interpretation of the Constitution makes them the greatest criminals in the history of the US. They break the supreme law of the land with every interpretation. Claiming a different scheme of interpretation does not absolve them from criminal activity.

  • http://rdmckinney.blogspot.com Roger McKinney

    The seven leftist judges I call socialist because they are the opposite of liberal. They use originalism when interpreting legislation. That means that the look at Congress’ intent. But the same judges ditch originalism when interpreting the Constitution. They’re typical socialists – dishonest.

    • Anthony Zarrella

      Ah, OK, I see. Well, I agree with you that at least some of the Justices lack fidelity to the Constitution, but to say they use originalism actually requires you to ignore Justice Scalia’s very firm views on its proper definition.

      Trying to divine the intentions of the legislature is not originalist at all. Originalism is about what the text of the law originally meant when it was enacted. In other words, it’s not about what the legislators wanted to accomplish, but about what they understood themselves to be actually voting on.

      So, while there are a scant handful of law professors who do manage to use the methodology of originalism to promote leftist/progressive ideals, the non-originalists on the Court are simply that – non-originalists.

      • http://rdmckinney.blogspot.com Roger McKinney

        “n other words, it’s not about what the legislators wanted to accomplish, but about what they understood themselves to be actually voting on.”

        I don’t see a difference. You seem to be making a distinction without a difference. But it looks like we agree for the most part.

        I don’t think any of the socialist judges use originalism to promote socialist causes. I was just pointing out what hypocrites they are in using originalism to interpret new legislation but then saying originalism is evil when applied to the Constitution. If they use originalism to interpret legislation, then why are they not originalists with regard to legislation. Your comment doesn’t make much sense.

        It seems to be that it’s possible to be anti-originalists about the Constitution while embracing originalism for legislation. Why is that impossible?

        • Anthony Zarrella

          I don’t see a difference. You seem to be making a distinction without a difference. But it looks like we agree for the most part.

          Yeah, I think we do, for the most part (sorry for the late reply – I was, ironically enough, sitting for the Bar Exam only a week or so after the sad news…).

          I think the critical difference is that if the intent diverges from the meaning of the text, then the text controls.

          So, for example, imagine the text says, “motorized vehicles or conveyances”, and there’s a case about whether it includes Segways.

          Under “intent” jurisprudence, the Court might consider whether Congress probably “meant to” include Segways, and might conclude that they actually only meant things that run on conventional engines and pose a certain sort of threat to pedestrians.

          But under “Scalian” originalism, the Court would just say, “Well, Congress clearly knew what ‘motorized’ meant, and what ‘vehicles or conveyances’ meant – and a Segway is both of those, so it’s covered. If Congress doesn’t like it, they can amend the statute.”

          Also, Scalia hated the idea of “intent” because he considered it silly to suppose that you could find a single, unified “intent” to ascribe to all 51 Senators (or whatever) who voted for the bill. Maybe some of them thought that Section 1(A) was the heart of the bill, and 2(B) was the bitter pill they had to swallow to get it to pass, but others held their noses and choked down 1(A) in order to pass 2(B). Maybe some legislators repealed a portion of the Civil Rights Act because they believed in a colorblind society, and others voted to repeal because it would advance their constituents’ business interests, and others were just racist.

          I was just pointing out what hypocrites they are in using originalism to interpret new legislation but then saying originalism is evil when applied to the Constitution. If they use originalism to interpret legislation, then why are they not originalists with regard to legislation. Your comment doesn’t make much sense.

          I’m saying that (by and large), they don’t use originalism to interpret legislation. They use purposivism, and they use legislative history (which Scalia likewise hated, with the possible exception of accurate records of votes on proposed amendments), but if they used originalism, they would have voted with Scalia and Thomas on virtually every question of statutory interpretation (which actually make up a much larger portion of the Court’s docket than the high-profile constitutional cases).

          • http://rdmckinney.blogspot.com Roger McKinney

            Interesting clarifications. Obviously I’m not familiar with the technical language. I was using the word “intent” in the hermeneutical sense. Of course, in that sense you’re usually dealing with one author. In the hermeneutic sense it just means considering how words were used at the time and the context, such as the reason for the writing, and the history behind it. Just based on what you wrote it seems like Scalia was doing a reductio ad absurdum. I don’t see why a judge would have to read the minds of 500+ legislators to achieve original intent. You don’t have to read anyone’s mind. Just keep the context in mind and use the principles of hermeneutics for interpreting documents. The first principle in hermeneutics is to look at the intent of the author but it’s not anything like Scalia’s definition.

          • Anthony Zarrella

            As long as the relevant evidence of “intent” is the text, and nothing extrinsic to it, and as long as the asserted intent is never allowed to override or contradict the text, or make it mean something its terms will not fairly bear, then we’re on the same page.

            Generally, when people speak of the “intent” of the legislature in legal philosophy, they’re talking far more broadly than you indicate, and they also propose to make the intent more important than the plain text.

          • http://rdmckinney.blogspot.com Roger McKinney

            “…nothing extrinsic to it…”

            I think judges should use the principles of hermeneutics to interpret all laws but especially the most important law, the Constitution. Aristotle first codified the priniciples and Aquinas refined them. But essentially they’re guides for being honest. Violating those principles makes one dishonest. But that means using relevant context.