Where does Justice Scalia stand on the question (recently debated here and elsewhere) whether originalism should seek the original legal meaning of the Constitution (that is, as understood by legal experts) or simply the original meaning as understood by non-experts?
Ilya Somin argues, on the basis of a passage in District of Columbia v. Heller, that Scalia favors a "populist" meaning. But Mike Rappaport shows that in other cases, Justice Scalia relies on legal meaning.
Here is the key passage from Heller:
In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Sprague itself is an interesting if largely forgotten case, unanimously picking textualism over unexpressed purpose and living constitutionalism. The defendant, convicted of alcohol-trafficking during Prohibition, claimed that the Eighteenth Amendment was invalid because it had been approved by state legislatures instead of by a constitutional convention. As the Court described:
The appellees ... say that it was the intent of its framers, and the Constitution must therefore be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions, and that the Eighteenth is of this character. They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled, and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government. From this and other considerations hereinafter noticed, they ask us to hold that Article V means something different from what it plainly says.
Amazingly, the district court agreed (albeit on somewhat different grounds) and held the Eighteenth Amendment invalid. As the Supreme Court further described:
[The District Court] quashed the indictment not as a result of analysis of Article V and Amendment X, but by resorting to "political science," the "political thought" of the times, and a "scientific approach to the problem of government." These, it thought, compelled it to declare the convention method requisite for ratification of an amendment such as the Eighteenth.
But the Court had no sympathy for either view. In a crisp opinion by Owen Roberts, it followed the plain language:
The United States asserts that Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the states, must call a convention to propose them. Amendments proposed in either way become a part of the Constitution
"when ratified by the legislatures of three-fourths of the several states or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . ."
The choice, therefore, of the mode of ratification lies in the sole discretion of Congress ...
If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler that so to phrase Article V as to exclude implication or speculation. The fact that an instrument drawn with such meticulous care and by men who so well understood now to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence that no qualification was intended.
So, first, Sprague wasn't about legal meaning versus populist meaning; it was about textual meaning versus implications from non-textual sources. The full quote from Sprague adds the point that "where the intention is clear [from the text], there is no room for construction and no excuse for interpolation or addition." Second, Sprague's approach tracks Scalia's position in Heller, which was that the text should prevail over the purpose/intent arguments pressed by Justice Stevens in dissent. Indeed, in Heller itself Scalia relied on legal meaning and interpretive conventions -- most notably that a preamble cannot alter the unambiguous meaning of the text's operative clause.
I think the key to both opinions is that the meaning is found in the text, not in hidden and unexpressed intents. This is what both opinion authors surely had in mind. To read either opinion as taking a position on the legal meaning/populist meaning is to go well beyond what was at stake in the cases.
Ironically, though, the plain language Justice Roberts wrote in Sprague and Justice Scalia repeated in Heller does appear to take such a position. It's hard to read "normal and ordinary [meaning] as distinguished from technical meaning" as anything other than contrasting popular meaning and legal meaning.
My view is that this re-affirms the importance of not taking dicta too seriously. People (including Justices) repeat attractive phrases without thinking closely about their implications, so long as the implications are not concrete and immediate. As a result, I don't think the Heller/Sprague quote necessarily reflects what Justice Scalia thinks of the specific issue of legal versus popular meaning.
As an aside, US v. Sprague is interesting for a different reason. The Court of the 1930s is criticized (rightly) for not being originalist or textualist. But Sprague shows its Justices could unite behind a strong bit of textualist originalism -- refusing even to engage purposive or normative arguments -- when there was no political pull in the other direction.
RELATED: John McGinnis comments on the legal meaning/popular meaning debate: The Constitution as Law Nested in Other Law. Jon Roland also comments: Lay vs. legal versions of originalism, including this point:
The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.
I would add that the term "elitist" distorts the role of the legal meaning. The legal meaning of the text was (and is) available to those who investigate it, whether they are lawyers or laypersons, ordinary or elite. Appealing to it does not hide or unsettle the meaning. The key distinction (what was really at issue in Sprague) is between legal meaning of the text -- which can be looked up -- and unexpressed intent or purpose, which can only be speculated about and invoked by elite decisionmakers when convenient.