Vibrant Originalism: How the English Common Law Lends Itself to Justice Scalia's Originalist Jurisprudence
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Justice Antonin Scalia was perhaps one of the most influential contemporary originalist/textualist thinkers to sit on the Supreme Court bench. Justice Scalia often chose between two interpretive canons when making his judicial decisions, and that dichotomy led many of his critics to call him inconsistent. One aspect about Justice Scalia’s philosophy that was consistent, however, was that he did not believe that the meaning of the Constitution evolved with contemporary politics - he was not a “living constitutionalist.” Many claim that this means Justice Scalia believed the Constitution to be fundamentally “lifeless” so as to protect a certain bedrock of rights. I think that Justice Scalia would likely disagree with the “lifeless” characterization, arguing for the vitality of originalism by using the common law tradition. I will support this claim by first describing Justice Scalia’s originalism/textualism, then analyzing his prior remarks about the common law, and finally relating such remarks back to his originalist philosophy.
Originalism is a method of Constitutional interpretation which bases decisions on the “original intent” of the Framers. This is similar to, but importantly distinct from, textualism (the interpretation of the ordinary meaning of the specific statutory language). Both of which, however, could be said to render the Constitution fundamentally “lifeless” in that they are the foil to living constitutionalism, or the interpretive method which supposes that the meaning of the Constitution should evolve alongside evolving societal conditions and political climates.
Justice Scalia makes clear that both these philosophies bear strongly on his judicial temperament. Textualism defines his “philosophy of statutory construction” and originalism defines his philosophy of “constitutional construction.” Thus, Scalia draws a clear distinction as to which philosophy he employs and when. When examining statutes, Scalia looks to the meaning of the words at the time that they were written. When examining the Constitution, however, he examines what was likely to be the original intent of the Framers. Scalia’s defense against claims of inconsistency in choosing between the two philosophies might likely be that he consistently exercises each philosophy when the situation merits one or the other - that is to say, whether or not he is interpreting a statute or the Constitution itself. He may even claim that such a distinction is justifiable because the Constitution, in establishing the framework of systems and rights that the United States currently enjoys, established practices which articulated in words that ideal of Americanism which had been shaped years prior by cultural conventions, shared struggles against tyranny, and common convictions. The Constitution made possible the statutory impositions of later years, and thus should be interpreted based on intent rather than on text itself, as it established the ideals of legality rather than specific legal principles. Such a manner of deference to the Constitution and the original intent of its authors might well be more filled with life than any other interpretive philosophy, as it seeks to preserve eternally the legacy of the ideals that lit the flame of the American experiment.
Both those philosophies predicate themselves on the idea that if laws need to be changed, then they should be changed through the proper channel, which is the “people” changing them through elected legislators - not judges arbitrarily altering laws because they think that such laws need changing. Justice Scalia, in discussing the appeal of “legislating from the bench” puts it this way: “What intellectual fun all of this is! It explains why first-year law school is so exhilarating: because it consists of playing common-law judge, which in turn consists of playing king; devising, out of the brilliance of one's own mind, those laws that ought to govern mankind. How exciting! And no wonder so many law students, having drunk at this intoxicating well, aspire for the rest of their lives to be judges!”
There, Justice Scalia is commenting on the common law system of legal education, which has law students study historic judge-made law, which Justice Scalia thought breeds the exact type of “bench legislating” which he wrote so vehemently against. However, that is not to say that Justice Scalia did not believe in another conception of the common law, in particular the English common law, which William Blackstone described as judicial decisions that are “the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law.” Justice Scalia valued this classical conception, for the judges in the English common law system discerned what the law was, not what they wanted it to be. Justice Scalia actually revered English common law inasmuch as it could “shed light on the meaning of constitutional provisions ‘written against the backdrop of 18th -century English law and legal thought.’”
Clearly, Justice Scalia understood English common law as insight into how a judge could actually discern the “original intent” of the Framers. Since the Framers would have been influenced considerably by the English common law, an understanding of and a subsequent deference toward such archaic law would become necessary under Scalia’s originalism. It is here that I think the major distinction is clearly drawn between a “fundamentally lifeless” view of the Constitution and the view held by Justice Scalia. Justice Scalia’s originalism was explicitly founded upon a historical examination of the text. More specifically, the English common law (which aided Scalia in this examination) was a compilation of the compounded, customary laws of England which likely influenced the thinking of the Framers. I think Justice Scalia might contend that such a reliance on history, such a deference toward the lived experiences and decisions of generations prior to our own, provide a sense of sacred vitality to the Constitution and to the subsequent interpretations of it. Choosing to view the Constitution through the lens of original intent, to Justice Scalia, was not halting the “life” of the Constitution. Rather, it was allowing the Constitution to live in harmony with the traditions and the experiences of those who preceded it, thus allowing the progresses of the present to be predicated upon the wisdom of the past.
Justice Scalia also exercised a great degree of respect for the Federalist Papers in determining original intent. Upon examining the Federalist Papers, there is a clear point that the constitution established safeguards against the sweeping-movements of factions which can pose grave threats to the nation. Scalia’s affinity for the Federalist Papers as an interpretive aid likely demonstrates that he viewed the doctrine of original intent as a direct protection against tyranny of the majority, which could be allowed to take hold if public opinion is allowed a role in adjudication.
Because of Justice Scalia’s propensity toward the English common law, which is markedly different than the system of statutorily constructive adjudication which Scalia abhors, the argument can be made that such a system installs a reverence for history itself into Scalia’s interpretive philosophy. History, then, is built upon the lived experiences of others, and by holding those experiences (and the knowledge which flowed from them) as sacred, Justice Scalia could contend that his historical argument for original intent keeps the heart of the American ideal beating, rather than transplanting it with new ideals shaped by faction-driven movements of public opinion.
Austin Dillon is a McConnell Scholar in the class of 2022. He is studying economics and political science at the University of Louisville.