From 2012, but recently posted on SSRN, Antonin Scalia (U.S. Supreme Court) and John Manning (Harvard Law School): A Dialogue on Constitutional and Statutory Interpretation (80 Geo. Wash. L. Rev. 1610 (2012)). Here is the abstract:
This dialogue addresses oft-discussed questions of statutory and constitutional interpretation. The topics include the reasons for treating statutory text as determinative, the arguments for not treating legislative history as authoritative evidence of statutory meaning or legislative intent, the permissibility of excising absurd results and/or scrivener’s errors from a statute’s scope, the proper method of interpreting often-technical legal texts, and the differences between statutory and constitutional interpretation (with emphasis on the proper role for The Federalist in constitutional adjudication).
It's mostly about statutory interpretation, but there's this of note on constitutional interpretation (Scalia responding to a question about why he would use "legislative history" such as the Federalist Papers to interpret the Constitution although he refused to use legislative history to interpret statutes):
I cite The Federalist, but not because it's legislative history. I don't rely on the views of its authors because they were present at the writing of the Constitution-because since they wrote it, they must know what it means. That's not the reason. One of the authors, John Jay, did not attend the Philadelphia Convention.
Nor do I rely on The Federalist because the ratifiers must have known and agreed with it. (That's the kind of unrealistic assumption the practitioners of legislative history use.) I rely on it because it sets forth the views of intelligent, well-informed persons of the time, which are entitled to great weight on the basis of their experience and their closeness to the process. For similar reasons, I'll consider what Thomas Jefferson says, though he also was not present at the Constitutional Convention and though his words were most unlikely to have been before the ratifying conventions. His words won't be conclusive, but they may supply a persuasive indication of what the Constitution meant to the people at the time. That's quite different from legislative history.
Posted at 6:47 AM