The Meaning of Meaning

I stumbled on this interesting exchange the other day - a bit late, but it touches on an issue near and dear to my heart. It is between Alan Dershowitz and Antonin Scalia. Justice Scalia is dead, you say? Quite right, but it seems that early in Justice Scalia's term on  the Supreme Court, members of Mr. Dershowitz Constitutional Law class felt he, as their teacher, was a bit lopsided in his criticism of Justice Scalia's Supreme Court opinions, so they issued an invitation to the Justice to come debate Mr. Dershowitz. Nino, as Justice Scalia was nicknamed, promptly accepted. Would  that I was a fly on the wall of  that confrontation, but in lieu thereof, we have Mr. Dershowitz' report:

"So, in my classroom debate with the justice, I challenged him with the Supreme Court’s 1954 decision in Brown v. Board of Education, which ended racial segregation of public schools in the Southern states. As a matter of indisputable historic fact, following the Civil War the “people” who “adopted” the Equal Protection Clause of the 14th Amendment had to take into account what would surely be the continued segregation of public schools, and not only in the Deep South …

I asked Justice Scalia, whether if had he been on the court in 1954, he could have joined the unanimous court without violating his principle of originalism. He was both candid and self-effacing in his response, saying that no theory of constitutional interpretation — including originalism — was perfect. But he still insisted that originalism was “better” and “safer” than any other theory, because it precluded honest judges from substituting their own philosophies for those of the founding generation. In his own provocative words: “Show Scalia the original meaning, and he is prevented from imposing his nasty, conservative views upon the people. He is handcuffed. And if he tries to dissemble, he will be caught out.”

I feel sure that the Justice had a bit more to say than that about the subject, but that is all Mr. Dershowitz gives us, which is not to say Mr. D was being unfair to Nino. His review is uniformly affectionate, and he is trying to give the flavor of his relationship with Scalia in light of the significant differences they had on Constitutional interpretation.

But it raises my own  thoughts on Scalia's theory of Constitutional interpretation of originalism, and what a proper response to Mr. Dershowitz should be. For there is no doubt in my mind that originalism is the only proper interpretative theory for a purported Constitutional Republic. If the original meaning of the foundational document of a Republic is not determinative of its ongoing application, then the whole idea of a Constitution becomes essentially meaningless. You might just as well set up any small group of people and give them generic principles like 'justice' and 'fairness' and then wait for them to tell you what to do next. As we have seen, that is the net result of the 'living constitution' interpretive school which we have suffered under these many years.

But Brown v. Board of Education did conclude in a good result. Would originalism have precluded that result? And if so, what does that mean for constitutional interpretation?

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