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Q&A with Richard Hasen on his New Scalia Book
Michael Ramsey

At SCOTUSblog, Ronald Collins interviews Richard Hasen (UCI) on his new book The Justice of Contradictions: Antonin Scalia and the Politics of Disruption Here is a question on originalism:

Question: When it came to constitutional interpretation, was Scalia an originalist or texualist or both?

Hasen: This is quite an interesting question. For constitutional interpretation, Scalia said he believed a constitutional provision should be interpreted in line with its original public meaning at the time of enactment. For statutory interpretation, in contrast, he said that statutes should be read in line with how a fair reader of the English language at the time of enactment would have understood the words.

These two approaches are similar but not identical. For example, consider the equal protection clause of the 14th Amendment. A pure textualist reading would ask what the words “equal protection” would have meant in the 19th century. And sometimes Scalia would just look at the text to understand how it applied, arguing, for example, against affirmative action for racial minorities. But at other times he looked not only at the words but at social context to consider how a provision was understood at the time, arguing, for example, that the equal protection clause did not protect against sex discrimination because no one at the time of ratification would have understood it that way. So this answer goes beyond the text of the equal protection clause to look at social practices and tradition for its meaning.

Scalia was criticized for not explaining why as a public-meaning originalist he rejected looking at social context at the time of ratification when it came to affirmative action. The Congress right after ratification passed laws benefiting newly freed slaves. As I show in the book Scalia was pushed repeatedly to explain why this history would be irrelevant under his theory of public-meaning originalism to the permissibility of affirmative action and never responded — sometimes deflecting such questions with a joke, other times ignoring the point altogether.

Plus an ironic story at the end.