From WSJopinion: Be on the lookout for common and predictable misrepresentations of originalism, which are sure to arise this week in the coverage of Amy Coney Barrett’s confirmation hearings, writes cjscalia
Journal Editorial Report: The nomination hearing amid a national election. Image: Erin Scott/Pool/AFP via Getty ImagesWhen Amy Coney Barrett’s confirmation hearings begin Monday, you can expect to hear a lot of questions about and descriptions of her judicial philosophy, originalism. Much of what you’ll hear about it will be inaccurate.
The dominant form of originalism entails interpreting provisions of the Constitution according to the “original public meaning” they bore when they were adopted. You wouldn’t know that from what journalists write about it. Linda Greenhouse, who covered the Supreme Court for decades and should know better, claimed that Justice Antonin Scalia believed “the only legitimate basis for interpreting the Constitution is the original intent of its framers.
What’s the difference? For one thing, when seeking to understand the intent behind a law, a judge or lawyer may place greater weight on legislative history than on text. That method undermines the ideal that America is a nation of laws rather than men. As my father put it, “We are governed by laws, not by the intentions of legislators.
Another common misrepresentation of originalism and textualism is conveyed in the Daniel Handler novel collection “A Series of Unfortunate Events.” During a trial scene in “The Penultimate Peril,” judges wear blindfolds out of a literal interpretation of the phrase “justice is blind.” This leads a wise infant who speaks in cryptic phrases to say simply, “Scalia”—meaning, the narrator explains, “something like, ‘It doesn’t seem like the literal interpretation makes any sense.
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