[Edwin] Meese’s comments on original intent [in his famous 1985 speech] are somewhat ambiguous. As I read his speech, he seemed to place more emphasis on the motivation of lawmakers than on the community’s understanding of recently enacted laws. At least I think that is how the legal community so interpreted his speech when it was delivered. Over the years, however, I believe scholars advocating adherence to a jurisprudence of original intent have given more attention to the understanding of readers of newly enacted legal text than to the motivation of the authors of that text. As an example of that approach, in his opinion for the five Justices in the majority in the Heller case – which as you know held that the Second Amendment protects the right to keep a handgun at home for purposes of self-defense — Justice Scalia devoted over 14 pages (554 U.S., 605-619) to a discussion of what scholars and others had to say about the Second Amendment during the decades after it was adopted. On the other hand, my dissent gave greater emphasis to a comparison of the text that James Madison had drafted with the proposals that he had rejected. I thought – and still think – that the text merely responded to the States’ narrow concern about possible federal disarmament of state militias rather than to a broader interest in protecting an unmentioned individual interest in using guns for purposes of self-defense. In other words, I applied what I think of as the original version of the jurisprudence of original intent rather than the more modern version. I sometimes wonder if my understanding of the correct reading of the Second Amendment’s brief constitutional text would have had a better chance of prevailing if the original version of the doctrine of original intent had been endorsed by the Justices in the majority.
Today I do not plan to reargue the merits of [Heller] … Instead, I shall identify some of the problems associated with the use of history when interpreting legal text, and explain why a particularly lucid comment by Justice Scalia in a statutory construction case may well provide more guidance to judges confronting novel constitutional issues than the socalled Jurisprudence of Original Intent. My conclusions are twofold: first, history is at best an inexact field of study, particularly when employed by judges. Second, the doctrine of original intent may identify a floor that includes some of a rule’s coverage, but it is never a sufficient basis for defining the ceiling.
Josh Blackman comments (unfavorably) here.
And here is Justice Scalia’s response to Justice Stevens’ similar criticisms of originalism in McDonald v. City of Chicago (citations and footnotes omitted):
Justice STEVENS’ response to this concurrence makes the usual rejoinder of “living Constitution” advocates to the criticism that it empowers judges to eliminate or expand what the people have prescribed: The traditional, historically focused method, he says, reposes discretion in judges as well. Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.
I will stipulate to that. But the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what Justice STEVENS proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor. In the most controversial matters brought before this Court—for example, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitutionality of the death penalty—any historical methodology, under any plausible standard of proof, would lead to the same conclusion. Moreover, the methodological differences that divide historians, and the varying interpretive assumptions they bring to their work, are nothing compared to the differences among the American people (though perhaps not among graduates of prestigious law schools) with regard to the moral judgments Justice STEVENS would have courts pronounce. And whether or not special expertise is needed to answer historical questions, judges most certainly have no “comparative . . . advantage” in resolving moral disputes. What is more, his approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.