Originalism: A Primer On Scalia's Constitutional Philosophy NPR's Nina Totenberg explains how the idea that the Constitution is "not living but dead" transformed the Supreme Court during Antonin Scalia's tenure as a justice.
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Originalism: A Primer On Scalia's Constitutional Philosophy

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Originalism: A Primer On Scalia's Constitutional Philosophy

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Originalism: A Primer On Scalia's Constitutional Philosophy

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MICHEL MARTIN, HOST:

Now we're turning to our regular segment, Words You'll Hear. That's where we try to understand stories in the news by parsing the words associated with those stories. Today, as we continue to evaluate the legacy of Supreme Court Justice Antonin Scalia, our word is originalism. NPR's legal affairs correspondent Nina Totenberg is going to tell us more about it. Nina, thanks so much for joining us.

NINA TOTENBERG, BYLINE: My pleasure.

MARTIN: So tell us about originalism.

TOTENBERG: Well, I think Justice Scalia actually defined it best. I asked your folks to pull a piece of tape in which he describes his position on the meaning of the Constitution.

(SOUNDBITE OF ARCHIVED RECORDING)

ANTONIN SCALIA: The Constitution that I interpret and apply is not living, but dead or, as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

MARTIN: OK, so did he originate this term or this point of view?

TOTENBERG: The point of view was not new to him. Robert Bork espoused that point of view to some extent, as have others, but he was its main proponent on the Supreme Court. And while that point of view might, at one point, have been considered something of a fringe viewpoint, he came onto the court in the middle of the 1980s, just as the conservative Federalist Society was taking hold in academic institutions. So there was this two- tiered motor - him on the Supreme Court, the Federalist Society, other judges who had been nominated and would be nominated by President Reagan and the two President Bush's on the lower courts - who espoused this view of constitutional interpretation that really had not been a part of our conversation in the 20th century.

MARTIN: And what informed this point of view? Because I confess that you listen to that and if you have passing acquaintance with both the founders and the writers of the Constitution and their conversations about the society that they wanted to create, many people continue to find this puzzling. I mean, they were envisioning a new society and creating a document to lay a pathwork for a very different perspective of society than had previously existed, than the one they grew up in. So for many people, the idea that this is a dead document is, frankly, absurd. And so I'm just wondering what informed this perspective.

TOTENBERG: The idea that it would be an enduring document, and that if there were going to be major changes in the way policies were implemented that they would have to be done through the democratic process, and that you don't want to give judges too much power to make those kinds of decisions. The flip side of that is a static interpretation of the law that doesn't move with the times, doesn't move with the society. And that's the struggle that you see on the Supreme Court today in some ways, between some of the Conservatives on the court and other members of the court.

MARTIN: This thinking clearly influenced the court during the years Justice Scalia served on it, did it not?

TOTENBERG: It did.

MARTIN: And how would you describe him? Would you describe Justice Scalia as the chief interpreter of originalism, or perhaps its most articulate or fierce proponent? How would you describe him in relation to this term?

TOTENBERG: He was its most fierce proponent, I guess I would say, but that didn't mean that he prevailed. Not everybody on the court agreed with him, including many of the Conservatives, on some issues. And so while he was its principal proponent and theoretician, he didn't win a great deal of the time because he was not a consensus builder. Other people were more willing to compromise than he was. He would have called that faux-conservativism. So there was a struggle not just with the moderate liberal wing of the court, but with some Conservatives on the court from time to time as well.

MARTIN: That's NPR's Nina Totenberg telling us about originalism. Thank you, Nina.

TOTENBERG: Thank you.

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