Those who want space to pursue the common good in many of the ways that Vermeule promotes should be attracted to originalism.
Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge. I may have more to say about this next week, but for now I want to note a significant issue.
Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment. Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document. These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.
It might seem that Justice Scalia supports the ordinary public side of this issue. In DC v. Heller, Justice Scalia wrote that:
In interpreting this text, 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(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Thus, Scalia seems to side with the view that legal meanings are not followed. But Scalia seems on weak ground here. First, Sprague is a 20th century case, which is no evidence of the original meaning, and Gibbons does not really support him.
Second, Scalia himself has regularly relied on the legal meanings of terms in the Constitution. For example, in Crawford v. Washington, one of Scalia’s premier originalist opinions concerning the Confrontation Clause, he quotes with approval that
the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. . . . As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations.
The common law is the legal meaning. One cannot assume that the general public understood that meaning and therefore Scalia here seems to be contradicting his methodological statement in Heller.
In Giles v. California, another originalist Confrontation Clause opinion written by Scalia, Scalia does it again. The issue is whether a witness who is rendered unavailable to testify by the defendant can have his testimony excluded based on the Confrontation Clause. Scalia writes that
the manner in which the [common law] rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded.
Once again, the content of the Confrontation Clause turns on technical questions under the common law – knowledge that the ordinary public would not have know. I am confident that I could produce numerous other examples of Justice Scalia interpreting texts in accordance with technical legal meanings.
Perhaps Justice Scalia is just being inconsistent. But there is another possibility. Perhaps when he says that the Constitution’s “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” he does not mean to exclude legal meanings. Perhaps he had “hypertechnical constructions” in mind.
But Justice Scalia’s statement in Heller is curious and, given this other evidence, is only used problematically as evidence against legal meanings.