At SCOTUSblog, Steven Calabresi: Justice Scalia’s originalist gambit. From the introduction:
On the 40th anniversary of Justice Antonin Scalia’s swearing-in, I wanted to reflect on one major aspect of his legacy to the American people. As many SCOTUSblog readers are undoubtedly aware, Justice Scalia led the way to an astounding revival of textualism and originalism, which had been dead since the legal realist revolution of the 1920’s.
But that’s widely known. In this article, I want to tell the story of how I personally saw Justice Scalia actually set out to revive originalism, and in particular a specific version of it, by giving what was at the time a risky lunch keynote address at Attorney General Ed Meese’s Conference on Economic Liberties on Saturday, June 14, 1986. One day before then-Judge Scalia’s speech, Attorney General Ed Meese had invited him to meet with President Ronald Reagan for what was (obviously) a job interview for a Supreme Court appointment. To put it mildly, Judge Scalia’s speech had high stakes for his future career.
Given this, most lawyers would say something mild, uncontroversial, and ingratiating toward the attorney general. But Judge Antonin Scalia was not a normal, cautious lawyer. Indeed, as a law professor, he liked to teach against the views of his class and tell them things that they did not ordinarily want to hear. Or to make a more historical reference, Justice Scalia was the type of person who would speak to King Henry VIII as if he were St. Thomas More. He was temperamentally unable to flatter or to say something that he did not believe to be true.
As background, it’s important to know that Attorney General Meese had staked his reputation in the year prior to Judge Scalia’s Keynote Address on arguing for what is called a jurisprudence of original intent for all federal and state judges to follow. Specifically, Meese advocated in perhaps a dozen speeches prior to June of 1986 that judges should follow the original intent of the Framers. Judge Robert H. Bork, Scalia’s rival for a Supreme Court nomination, had also expressed support for this view.
Not Judge Scalia. His June 14 keynote address was entitled “Original Meaning,” and its central theme was that Attorney General Meese was wrong to argue for original intent. Instead, Scalia contended that one should really be arguing for judges to follow the original public meaning of legal texts; that is, what people at the time of the text’s ratification would have understood it to mean as opposed to what those who drafted the text intended it to mean….
I agree this was a pivotal moment in the development of originalism, both that Scalia made the point and that Meese took it as an elaboration and refinement of Meese’s originalist views rather than as a hostile criticism.
Posted at 6:11 AM