In the minds of many Americans, Justice Antonin Scalia is a fanatic. He wants “to turn back the clock,” we are told, to use his seat on the Supreme Court to impose his narrow-minded morality on the rest of us. Justice Scalia, however, while undoubtedly a social conservative, probably decides cases the same way his colleagues do: by applying a standard of constitutional interpretation as impartially as he can.
For Mr. Scalia still believes in what the Jesuits taught him in civics: The executive branch executes, the legislative branch legislates and the judicial branch interprets. Is that naïve? Perhaps. What is more naïve, however, is the notion that we can turn our courts into a third house of Congress without creating a dangerous imbalance of power. Yet partisans on both sides would like to do just that, to resolve public policy questions through judicial fiat. That is undemocratic, says Mr. Scalia; judges should interpret, not legislate.
But just what method of interpretation should be used? Justice Scalia calls his method “original meaning.” Put simply, the idea is that the Constitution should be interpreted to mean what reasonable people would have understood it to mean at the time that its various bits and pieces were adopted. Note that “original meaning” is different from “original intent,” which Mr. Scalia thinks is not really knowable. In other words, “original meaning” is not an attempt to get inside James Madison’s head. Justice Scalia is simply saying that in a democracy, the standard of constitutional interpretation should center on the voter: What would the voters who voted for a particular constitutional provision have understood it to mean at the time that they voted?
Mr. Scalia refers to his method as “the lesser evil,” especially in comparison with the principal alternative: the “living Constitution.” The “living Constitution” is the idea that the Constitution is an organic entity, that it “evolves,” along with the nation’s moral standards. Since the Constitution is somehow “alive,” it can mean different things to different generations. The problem, according to Justice Scalia, is that if the Constitution means whatever a judge wants it to mean, then we have a kind of judicial tyranny on our hands.
People who oppose Justice Scalia’s approach argue that his method results in decisions that simply conform to his personal prejudices. But if Mr. Scalia really wanted to impose his own views, the more subjective “living Constitution” method would be the way to go. Mr. Scalia’s method, moreover, does not always produce rulings that conform with his personal opinions, and they can just as easily disappoint his supporters. Pro-choicers, for example, get angry when he says that there is no right to abortion in the Constitution; pro-lifers get angry when he says that there is no “right to life” either. If people want to outlaw abortion or the death penalty, or repeal the Second Amendment, which we advocate in this week’s editorial, Mr. Scalia says, “Then do what we do in a democracy: go out and vote for it.” If we do not like the meaning of something, vote to change it, but do not let unelected judges decide the matter for us.
On the whole, that approach strikes me as reasonable. “But,” you might say, “what about civil rights and all those objectively good things that the courts have brought about? Using his method, wouldn’t Mr. Scalia have voted against Brown v. Board of Education, for example?” No, Mr. Scalia has said. If the Court had applied his method, Brown would never have been necessary because “separate but equal” would never have been declared constitutional in the first place. But all that is beside the point. We probably should not decide the best method of constitutional interpretation according to whether it produces decisions that we personally like. That, after all, is what people are constantly accusing Justice Scalia of doing.