Today’s LLog [“What did Justice Scalia Mean“] brings us yet more news out of Literalville, where it seems Antonin Scalia has been giving interviews to New York Magazine:
Jennifer Senior, “In Conversation: Antonin Scalia“, New York, 10/6/2013:
Q: Had you already arrived at originalism as a philosophy?
A: I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
MYL comments:
It’s natural to be puzzled by this:
“Words have meaning. And their meaning doesn’t change.”
The second phrase is transparently false, which leaves us with the usual problem of interpretive abduction […] To make sense of what he said, we’re forced to reason in terms of the circumstances of the interaction and his likely communication intentions — and as I understand it, these are both factors that he himself prefers to banish from the interpretive process.
It seems the SCOTUS Justice has impaled himself on the horns of a dilemma not unlike the one that perpetually skewers the Mayor of Literalville.
The most charitable workaround here is probably that Scalia doesn’t mean that circumstances never influence interpretation, only that in interpreting foundational texts we ought not always replace original meanings with contextualized interpretations determined by contemporary circumstances. But of course that would involve contextualizing the Scalia text as an interview as opposed to an opinion.
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