Selling Originalism

Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, in the relevant way, represent the will of the People. To pledge allegiance to the understandings or the will of contemporary majorities – or, worse, of contemporary judges – is to subvert the aim of higher lawmaking. The purpose of constitutional guarantees, Justice Scalia has written, is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable