Justice Scalia on elitist and populist versions of originalism

August 28, 2014

In earlier posts, I outlined the difference between elitist and populist versions of originalism, and noted that Justice Antonin Scalia seems to prefer a populist approach, under which the text of the Constitution should be interpreted as understood by ordinary readers at the time of enactment, rather than as understood by legal experts. Legal scholars Michael Rappaport and Michael Ramsey suggest that Scalia’s position on this issue may be internally inconsistent (Rappaport) or that Scalia did not really mean to endorse a populist approach to originalism at all.

The relevant passage at issue is this one from Scalia’s majority opinion for the Court in District of Columbia v. Heller (2008), the first case in which the Supreme Court recognized an individual right to bear arms under the Second Amendment):

In interpreting this text [the Second Amendment], we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220…. Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

I think this pretty clearly endorses what I call a populist approach. Scalia (quoting Sprague) emphasizes that the words must be understood in their “ordinary” meaning, not a “technical meaning” and then adds that technical meanings unknown to ordinary citizens at the time of the Founding should be excluded. That seems to exclude understandings of the text shared by legal professionals (or other elites), but not ordinary readers.

I. Is Scalia’s approach contradictory?

Rappaport agrees that this passage seems to support a populist approach to originalism, but suggests that Scalia endorsed a more elitist approach in other opinions. For example, he argues that Scalia used technical meanings in interpreting the Confrontation Clause of the Sixth Amendment in two of his previous opinions. It is entirely possible that Scalia has been inconsistent on this point. Many originalists have not given careful consideration to the distinction between elitist and populist originalism, and the difference it might make. Few have offered much in the way of a sustained argument for preferring one or the other, and many betray little realization that there even is a meaningful distinction between the two. While Heller demonstrates, in my view, that Scalia endorses a populist approach in principle, he may not have made a careful and systematic effort to stick to it or consider its implications.

That said, I don’t think that what Scalia did in the cases cited by Rappaport is necessarily inconsistent with populist originalism. In those cases, he interpreted the Sixth Amendment right of criminal defendants to be “confronted with the witnesses against them” as not applying to cases where the witness was unavailable and had been cross-examined by the defendant previously, and cases where the defendant deliberately prevented the potential witness from being able to appear. It is at least plausible that an ordinary person reading the Confrontation Clause would interpret it as excluding cases where the government allowed the defendant the greatest possible opportunity to confront the witness, given the constraints of the situation (i.e. – it is impossible for the witness to appear at the trial, but the defense was able to cross-examine him earlier) or where the defendant himself deliberately created the unavailability. In the latter case, especially, the government would not have violated the defendant’s right to confront witnesses, because the defendant himself was responsible for making it impossible to confront the person testifying against him.

Scalia couches these exceptions as based on the rules of the common law at the time, and ordinary citizens might have been ignorant of common law doctrines. But it is not so clear he would have reached the same result had the common law rules been “technical meanings” that went against ordinary citizens’ interpretation of the same text. Moreover, the common law and experts’ views thereof might well be a useful indicator of nonexpert interpretations of constitutional text in cases where the experts are using common-sense (as opposed to counterintuitive) reasoning similar to what a nonexpert reader might adopt.

Rappaport also suggests that perhaps Scalia only meant to exclude “hypertechnical constructions” of the Constitution, as opposed to all technical meanings known only to legal elites. The distinction between “hypertechnical” interpretations of legal texts and those that are merely “technical” is far from a clear one. It might itself be a “hypertechnical” point. In any event, Scalia’s phrasing pretty clearly applies to all “technical” constructions, not just the hyper ones.

II. Is Scalia’s argument ultimately about textualism rather than populist originalism?

Mike Ramsey argues that both Scalia’s opinion in Heller and the 1931 Supreme Court opinion in United States v. Sprague that Scalia quoted are best understood as concluding “that the meaning is found in the text, not in hidden and unexpressed intents,” rather than taking a position on the distinction between elitist and populist versions of originalism. I am skeptical of this approach. As Ramsey recognizes, the passage from Sprague quoted above (and endorsed in Heller) clearly endorses “ordinary” meaning and repudiates “technical” ones. This goes beyond rejecting interpretation of the text based on hidden intentions, but also expresses and affirmative theory of how the text should be interpreted.

Ramsey suggests that this language is just dictum, unnecessary to determining the outcomes in Heller and Sprague. Once again, I am skeptical. The Court perhaps could have resolved Sprague (a case about the interpretation of Article V of the Constitution) simply by rejecting non-textual evidence, without resolving the question of how the text should be interpreted. But it chose not to address the issue that way, but instead rejected the lower courts’ reliance on expert “political literature” and court opinions in part because that political thought was not evident in the “ordinary” meaning of the words and would not have been “understood by the voters” at the time.

This is even more clear in the case of Heller where Scalia emphasized the “ordinary” meaning of the words of the Second Amendment in part to refute Justice Stevens’ argument in dissent that the “drafting history” of the Amendment – which incorporates the views of various legal and political elites – supported the latter’s position that it only protects a right to possess arms during militia service. That “drafting history” was not hidden or unexpressed. The problem with it (in addition to the fact that Scalia thought Stevens had misinterpreted it) was that it likely did not reflect the views of ordinary readers of the Amendment.

Perhaps most important, the results in both Sprague and Heller are consistent with a populist approach to originalism, as both interpret the words of the Constitution in a way likely to be accepted by most nonexpert readers. Like the majority in Heller, they tend to interpret the Second Amendment as creating a general right to keep and bear arms, not just a right to have weapons during militia service. Like the Court in Sprague, they are likely to conclude that Article V of the Constitution does not create different ratification procedures for constitutional amendments based on their subject matter.

None of this proves that Scalia has been completely consistent on the issue of populist and elitist versions of originalism. I would be surprised if he were. Still less does it prove that the populist version is necessarily correct. I personally doubt that it is, at least not across the board. But it does suggest that Scalia did endorse a populist view in Heller, and that his reasoning in that case and the Confrontation Clause cases is consistent with that approach.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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