Justice Scalia was the most visible proponent (and he loved being visible–he should have had a show on Fox News) of originalism: an approach to constitutional jurisprudence which emphasizes the importance of ascertaining the intent of the authors of the constitutional provision that is to be interpreted. It is the legal equivalent of conducting a seance, and it makes little sense in most cases, for the following reasons:
- Many of the Founding Fathers did not leave detailed records of their beliefs, which means that undue significance is attached to the opinions of those who did;
- Just because, say, Madison said something in 1800 doesn’t necessarily mean he believed it in 1787;
- The most important Founding Fathers had profound disagreements on virtually every important legal and political issue;
- The Constitution and the Bill of Rights had to be ratified by the states, which means it is at least arguable that the intent of the hundreds of members of the ratifying bodies was just as important as that of the Framers; and, most importantly,
- The current condition of our country would have been completely unrecognizable to anyone living in the 18th Century. What would Hamilton have thought about regulating the internet? Who can possibly know?
In addition, I always thought it was an amusing paradox that originalism sounds a lot like Protestantism, while Scalia was a conservative Catholic to the core. Was he aware of the contradiction? I doubt it.
Whatever. The bottom line tonight is that he no longer has to scour 18th Century texts to determine the Framers’ intent; he can just ask them himself. Good luck with that.