My Lord, Courts should interpret the Constitution as it would have been understood by ordinary, reasonable citizens alive at the time the Constitution was enacted or Courts should interpret the Constitution as a living organism, one meant to evolve to suit the changing needs and values of contemporary society?
“The next loss for Scalia came in a case dealing with the question of an excessive damages ruling against car manufacturer BMW. The case, BMW of North America v. Gore, had an unusual set of facts that became a staple of Scalia’s later speeches on constitutional decision making. Dr. Ira Gore Jr. had purchased a $41,000 black BMW only to discover that before his purchase the car had been repainted, presumably because of its exposure to acid rain. Believing that his car was now worthless, Gore sued for damages and was awarded $4,000 by the jury to compensate him for the reduced value in his car, and $2 million in punitive damages to punish BMW for not revealing the damage. For Scalia, in dissent, the question was the same as he had just argued in the Romer v. Evans gay rights case: just where in the Constitution was there a limitation on awarding “excessive damages”? Using his originalism tools, he sought to prove that his colleagues in the majority had gone far beyond their constitutional powers. “Today we the see the latest manifestation of this Court’s recent and increasingly insistent ‘concern about punitive damages that run wild,’” Scalia wrote, adding, “since the Constitution does not make that concern any of our business, the Court’s activities in this area are an unjustified incursion into the province of state governments.”
A standing-room-only crowd of law students and faculty packed the Ames Courtroom at Harvard Law School in the fall of 2008 to hear Antonin Scalia deliver the inaugural Herbert W. Vaughan Lecture. His topic was “The Methodology of Originalism,” and it would become his new stump speech. Three times before he had changed his basic originalism speech – in 1988-89, 1996, and 2005 – but unlike the others, each of which followed his failure to control his colleagues’ votes and the direction of the Court, this one came on the heels of his greatest judicial success to date. His majority opinion in the Heller case, though, had come at a cost, causing eminent historians and a leading conservative Judge to criticize him. After a summer of thoughts and work he was prepared to answer those critics, and in doing so change the way he lectured about judicial decision making. Scalia’s various originalism speeches and law teaching stints had allowed him to travel for free, be seen by thousands of people, and earn tens of thousands of dollars beyond his salary. The only thing that varied from audience to audience was the questions following his remarks. However, even they were becoming so repetitive that the press coverage for his appearances had lessened over the years. Now this new Harvard speech would allow him to renew his public persona. Scalia used his speech to rebrand himself.”
– Bruce Allen Murphy, Scalia – A Court of One, (Semon & Schuster, 2014).
Ultimately, whether we like it or not, most of us are engaged in the politics of statutory interpretation. Originalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing written law, like adopting written law in the first place, is the function of the first two branches of government. Originalism is defined as the view that the Constitution should be interpreted in accordance with its original meaning – that is, the meaning it had at the time of its enactment. Law laid down by the framers in the Constitution remains binding until we legally change it, such as through the amendment process; or differently, the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else. The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. The Constitution is not a living organism that changes, evolves, or is self-amending. The truth is that the Judge who looks outside the Constitution always looks inside himself and nowhere else. Even when a Judge purports to apply contemporary moral principles or fundamental community values to discover constitutional doctrine, the reality is that there are always competing moral systems and values in society, and the Judge will almost always decide cases based upon his or her own moral. The greatest defect of originalism is the difficulty of applying it correctly. It is often exceedingly difficult to plumb the original understanding of an ancient text. Scalia recognized that the choice between original meaning originalism and living constitutionalism is a search for the lesser of two evils, like being asked to choose between two librarians: one who speaks too softly and one who speaks too loudly.
Justice Scalia’s provocative style is “the jurisprudential equivalent of smashing a guitar onstage“. Justice Scalia was once asked why he took such pains to use memorable terms and provocative phrases (particularly in his dissents), and he said that he wrote them this way for law students. If his dissents are provocative and memorable, they will appear in law school casebooks, and if they are in the casebooks, they will be read by law students who might well decide that his views about the original meaning of the Constitution are persuasive.
In Sunil Shantisarup, [Writ Petition No. 1587 of 2015] it was contended before the Bom HC that in an era of information, and especially one driven by technology, Judges cannot turn a blind eye or be anaemic to change; Courts should, apart from conventional methods, allow digital video recording of Court proceedings; allowing an advocate’s argument to be filmed in addition to Judges would improve the functioning of the Judges and ensure accuracy of Court records.
“We may ourselves be at some distance ideologically from Justice Scalia on any number of matters, but on this issue we find ourselves in complete accord with him. He was repeatedly asked this question. Over and over again he pointed to the dangers of televised proceedings being reduced to mere entertainment, and of this being wholly opposed to the traditional role of Judges as ‘having retired’ from public view, of not being prominent in the public domain, qualities that are as eminently sensible as they are necessary. It is true that even on the US Supreme Court there is no absolute consensus. Justice Scalia’s view seems to have been based on a mistrust of the media. While we may not share that mistrust in quite the same measure, we are equally unconvinced that it is entirely without basis, and we find ourselves at some distance from a whole-hearted and unquestioning trust as well. We have for ourselves seen, and continue to see, the tendency of not just being selective – that is perhaps inevitable given the nature of the medium – but its pronounced slant toward the sensationalist, the prurient and the salacious. Our judicial system is adversarial, not gladiatorial. Our Courts are not the amphitheatres of Roman times, though much of our law is descended from Roman law. What happens in Court on a minute-to-minute basis is often unrelated or tangential to the final result. This dialectic of questioning, probing, testing is constant. Taken out of context, a single question, sometimes sharply worded, from the Bench is apt to be misread. The entire context and colour changes. Our attempt as Judges is to remove emotion from the judicial decision-making process. Media reportage of cases is permitted. In a number of recent cases, considered by the media to be ‘high profile’, there have been instances of reportage going out live on social media: Twitter and Facebook and so on. There is little that can be done about this. But this much is also true: Courts are open to those who trouble themselves to come to them, and who care to conduct themselves with the decorum and solemnity required of judicial proceedings. It is one thing to afford everyone a right to come to Court. It is quite another to take that Court into everyone’s living room.”