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01/11/2018

James Rogers on Original Meaning and Original Intent
Michael Ramsey

At Liberty Law Blog, James R.  Rogers, Why Scalia’s Originalism Trumps “Original Intent”. From the introduction:

Modern legal originalism evolved dramatically over the four decades of its renewed life in public debate. The speed of that evolution sometimes leaves proponents as well as opponents gasping for breath. Yet the evolution of originalism from Edwin Meese’s “original intentions” to Antonin Scalia’s “textualism” can imply different, even diametrically opposite, answers to the same legal questions.

While both can legitimately claim to be “originalism,” intentionalism and textualism forward mutually exclusive interpretive methodologies. As Scalia wrote in his 1997 book, A Matter of Interpretation: Federal Courts and the Law, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”

And further: 

I want to use this distinction in forms of originalism to refine Paul Moreno’s passing comment on originalism in his fine book review of Justice Jackson’s unpublished opinion in Brown v. Board of Education. There he observed, “it is clear on originalist grounds that the Fourteenth Amendment was not intended to prohibit segregated public schools (or racial intermarriage)” needs to be refined by whether originalism is understood as intentions or text.

The observation is certainly correct with respect to originalism as intentionalism, or originalism understood as expected application (in Jack Balkin’s phrase) of the drafters. The evidence is mainly circumstantial, nonetheless compelling. ...

...

Yet [the Framers'] thoughts, intentions or expectations are irrelevant for textualists originalists. Scalia’s comment about statutory history applies equally to constitutional history: “The statute is what Congress voted on, not what some committee member said he thought it meant. I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law.” Textualism distinguishes between original expected application of a provision with its original meaning.

When originalism is understood as textualism rather than intent, it’s no stretch for originalists fairly to read the Fourteenth Amendment to forbid racially segregated schools. ...

(Thanks to Mark Pulliam for the pointer).