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09/21/2017

Was Justice Scalia an Old Originalist?
Mike Rappaport

One of the standard distinctions these days is between the old originalism and new originalism.  While different people define the distinction a little bit differently, I define the old originalism as having two essential characteristics: using “original intent” to determine the original meaning of a provision and a belief that significantly constraining judges is essential to the task of originalism.

The newer originalisms – I use the term “newer originalisms” rather than the “new originalism” because new versions of originalism differ from one another – have abandoned these two characteristics.  The newer originalisms tend to focus on the original public meaning – focusing on a more textual than intentionalist approach.  And the newer originalisms no longer hold (or act like) significantly constraining judges is essential.  If the original meaning is permissive – if it is unclear, vague, or delegates power to judges – then that is the original meaning and newer originalists generally believe it should be followed.

Given these definitions, how should we classify Justice Scalia?  On the one hand, Scalia was perhaps the most important person responsible for the shift from original intent to original public meaning.  Thus, he deserves a significant place among those responsible for the newer originalisms.

On the other hand, Scalia placed a very strong value on constraining judges.  And it is a common criticism of the Justice that he often preferred clear rules to the original meaning, when that original meaning might have been unclear.  I mentioned one example in my prior post on the nondelegation doctrine.  Another example is Justice Scalia’s decision to refuse to join Justice Thomas’s decision in McDonald concluding that incorporation of the Second Amendment occurred under the Privileges or Immunities Clause rather than the Due Process Clause (which had been “fixed” through precedent).  On this score, then, Scalia stands as an old originalist.

One possible way of reconciling clear rules with the original meaning is to assume (in cases of ambiguity) that the Framers would have preferred a meaning that was clear over one that was unclear.  There is something to be said for this, but at most I believe it supports a weak inference.  And Scalia rarely, if ever, made this argument.

Thus, Scalia stands somewhere between the old originalism and the newer originalisms.  He is something of a transitional figure, who established one innovation but retained the traditional theory in other ways.