In 1987, one year after Antonin Scalia's confirmation as an associate justice of the Supreme Court, only 7 percent of the briefs filed before that court made an originalist argument. Twenty years later, 35 percent did so. This is no accident.
Scalia arrived at a Supreme Court where the justices were generally results-oriented, embracing some notion of a "Living Constitution" — the belief that the Constitution is essentially an empty vessel into which they could pour whatever new wine they wished. They saw the Constitution as having no permanent and fixed meaning but rather as a living, evolving document that must be interpreted to conform to the times. Scalia utterly rejected that view. He insisted instead that the times must conform to the Constitution, and he pulled (initially single-handedly and later in tandem with Justice Clarence Thomas) the Court in an originalist direction.
He did so by pursuing an "original public meaning" approach to the Constitution. He insisted that the Constitution should be construed consistent with the original understanding of those who drafted and ratified it. That meant, for him, consulting dictionaries of the era and other founding-era documents in order to ascertain what the words and phrases of the Constitution meant to the society that adopted them. In my book, Antonin Scalia's Jurisprudence: Text and Tradition, I have included an appendix listing the numerous dictionaries Scalia had cited in his opinions to establish a constitutional provision's original public meaning — it ran five pages long.
Perhaps the most illustrative example of Scalia's original public meaning approach to the Constitution is his majority opinion in District of Columbia v. Heller (2008), in which he held for a five-member majority that the Second Amendment secures an individual right to keep and bear arms for purposes of self-defense. The Second Amendment reads: "A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."
In the previous decades, these words had been understood to secure only the collective right of militias to keep and bear arms, and since 18th century state militias had been replaced by modern police departments and national guard units, the Second Amendment was considered to be a dead letter, repealed by the passage of time. Scalia rejected this conventional wisdom. He pointed out that the right was personal and pre-existing — the Second Amendment did not confer on the people the personal right to keep and bear arms but only secured it, just as the First Amendment did not confer the pre-existing personal right of the people to freedom of speech and press but only secured it.
He then proceeded to parse every word of the Second Amendment, turning to dictionaries and legal encyclopedias of the late 18th Century to ascertain what such words and phrases as "keep," "bear," "arms," "well-regulated militia," and "free state" meant to the members of the First Congress that adopted the Second Amendment and to the members of the state legislatures who ratified it.
In Heller, his original public meaning approach led him to a conservative conclusion, but in many other cases, especially concerning the Bill of Right's criminal procedural provisions, it led him to what many would consider liberal outcomes. His approach made him a fierce defender of the Fourth Amendment's protections against unreasonable searches and seizures – in Kyllo v. United States (2001), he wrote the majority opinion overturning the conviction of a marijuana grower because federal agents did not secure a search warrant before using a thermal-imaging device to detect heat radiating from his house generated by high-intensity lamps used to grow marijuana indoors.
It made him a fervent protector of the Fifth Amendment's right of criminal defendants to confront witnesses against them — in Michigan v. Bryant (2011), he argued in dissent that a victim's dying words spoken to a police officer identifying his assailant should have been excluded because the defendant could not confront the witness. And it made him the Court's most stalwart advocate of the Sixth Amendment right to trial by jury, a right he called "the spinal column of American democracy." In Blakely v. Washington (2004), he argued for a five-member majority that the right to trial by jury requires that every element of a crime for which a criminal defendant can be sentenced must be proved by a jury beyond a reasonable doubt or pled to by the defendant and prohibits judges on their own from enhancing the sentence based on the findings of probation officers in their pre-sentence investigation reports.
Scalia's original public meaning approach is his most important legacy. He understood its ability to constrain judicial discretion and how it required him to support what the Constitution means, even when contrary to his personal preferences. It's a legacy that sets a high benchmark for all justices — to serve as principled jurists who objectively follow what the Constitution requires without fear or favor.
Ralph Rossum is the Henry Salvatori Professor of American Constitutionalism at Claremont McKenna College. Among his many books are Antonin Scalia's Jurisprudence: Text and Tradition (2006) and Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (2014), both by the University Press of Kansas. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.