Scalia's Originalism

At The Washington Examiner, our colleague Ralph Rossum writes that only 7 percent of SCOTUS briefs in 1987 made an originalist argument. In 1987, one year after Antonin Scalia's confirmation as an associate justice of the Supreme Court, only 7 percent of the briefs filed before that court made an originalist argument.  "Twenty years later, 35 percent did so. This is no accident."

Scalia arrived at a Supreme Court where the justices were generally results-oriented, embracing some notion of a "Living Constitution" — the belief that the Constitution is essentially an empty vessel into which they could pour whatever new wine they wished. They saw the Constitution as having no permanent and fixed meaning but rather as a living, evolving document that must be interpreted to conform to the times. Scalia utterly rejected that view. He insisted instead that the times must conform to the Constitution, and he pulled (initially single-handedly and later in tandem with Justice Clarence Thomas) the Court in an originalist direction.

He did so by pursuing an "original public meaning" approach to the Constitution. He insisted that the Constitution should be construed consistent with the original understanding of those who drafted and ratified it. That meant, for him, consulting dictionaries of the era and other founding-era documents in order to ascertain what the words and phrases of the Constitution meant to the society that adopted them. In my book, Antonin Scalia's Jurisprudence: Text and Tradition, I have included an appendix listing the numerous dictionaries Scalia had cited in his opinions to establish a constitutional provision's original public meaning — it ran five pages long.