Apparently,Originalism is More Subtle than it Sounds…
Justice Antonin Scalia did an interview this morning on Fox News Sunday to promote his book, Reading the Law: The Interpretation of Legal Text. Not surprisingly, part of the discussion was on Scalia’s preferred method of interpreting the constitution:
SCALIA: Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.
Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.
He further said:
SCALIA: What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time, say, the death penalty.
This means, according to Scalia (in another interview), when we read the following passage of the 14th Amendment that we have to understand what “citizens” and “person” meant in context of the 1860s, as well as what would have been in the mind of the authors of the document:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In the aforementioned interview from January of 2011, Scalia stated (in response to a question in bolded text):
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.
Ok, that view is consonant with the notion of interpretation that requires “when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.”
Setting aside whether that is the appropriate or desirable way to interpret the document, we have to consider the following form this morning’s interview, with the issue of the Second Amendment and laws that could restrict the right to keep and bear arms:
WALLACE: But what about these technological limitations? Obviously, we’re not talking about a handgun or a musket. We’re talking about a weapon that can fire a hundred shots in a minute, SCALIA: We’ll see. I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be — it will have to be decided.
WALLACE: So, how do you decide if you’re a textualist?
SCALIA: Very carefully. My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.
And this gets to the part I find profoundly inconsistent with his views of constitutional interpretation: if when “when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning” and “What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time” to the point that fundamental constitutional rights do not apply to half the population because back in the day we had a patriarchal society (sorry girls, we have to go with intent of the guys who wrote the words) then how can we say “well, an RPG might be constitutionally acceptable because it can be born on a person.”
To put it simply: “arms” in the 1790s meant single-shot muskets and pistols which, dangerous as they might have been, as mere pop-guns compared to even basic handguns in the modern era. If Scalia truly seeks to understand the constitution in terms of what the words meant when written, I cannot see how he can justify modern weapons at the same time he says “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.”
Of course, none of the authors of the Second Amendment, nor anybody who voted for it, “ever thought” that citizens of the US could purchase semi-automatic rifles, either.
In other words, if our understanding of “arms” can evolve (something Scalia clearly sees as acceptable, as he does about instruments for use in application of the death penalty—also in the interview this morning) then I do not see why our understanding of “citizen” and “persons” cannot evolve. And if they cannot, where is the justification for our understanding of “arms” to change?
By the way: this is not a post about gun control or gun policy. Indeed, I think it is pretty obvious that our understanding of “arms” is quite different from what the Framers of the Second Amendment understood the term to mean. I don’t think that that means, therefore, we should only be allowed muskets. But I don’t claim to be an originalist—however, Scalia does and I find his views on arms and his views on equal protection to be intellectually inconsistent.
Indeed, I find the entire enterprise of pure orginalism to be a fruitless one because, as I noted in a post the other day on this subject, it is extremely difficult to actually know what the intent of the writer was or whether there was a shared understanding at the time of what a given word meant. Further, times change (not only does technology change, but our views of ourselves and our world change) so the notion that we can only understand the constitution in the context of its origins strikes me as chimerical at best.
At a minimum, I need someone to explain to me how this philosophy of interpretation leads to the conclusion that the 14th Amendment’s equal protection clause does not apply to women, but it might just be possible that an RPG launcher conforms to the original definition of “arms” because, after all, one can “bear” it. And on that latter point, I leave RPGs in there for drama, and because it was the subject of the Wallace-Scalia discussion. However, I would maintain that pure originalism as defined above would mean that “arms” could only mean a muzzle-loaded, single-shot weapon because “the meaning that it had with respect to those phenomena that were in existence at the time.” Again: that’s not my view, but it does seem to me to be the logical conclusion of orginalist thinking.