Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview
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18
Originalism: The Lesser Evil

ANTONIN SCALIA Justice, Supreme Court of the United States

It may surprise the layman . . . to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one's youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean. That is, I suppose, the sort of behavior Chief Justice Hughes was referring to when he said the Constitution is what the judges say it is. But in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing--either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court's desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support. . . . It is only in relatively recent years, however, that nonoriginalist exegesis has, so to speak, come out of the closet and put itself forward overtly as an intellectually legitimate device. To be sure, in support of its venerability as a legitimate interpretive theory there is often trotted out John Marshall's statement in McCulloch v. Maryland that "we must never forget it is a constitution we are expounding" 1--as though the implication of that statement was that our interpretation must change from age to age. But that is a canard. The real implication was quite the opposite: Marshall was saying that the Constitution had to be interpreted generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future. If constitutional interpretation could be adjusted as changing circumstances required, a broad initial interpretation would have been unnecessary.

Those who have not delved into the scholarly writing on constitutional

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