Citation

Boyce B. Cardozo L. Rev. De Novo 2010; 2010: 2-17.

Copyright

(Copyright © 2010)

DOI

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PMID

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Abstract

The Supreme Court's recent decision in District Of Columbia v. Heller has been widely hailed by its admirers as a triumph of originalism. Indeed, both Justice Scalia's opinion for the Court and Justice Stevens' dissent focus largely on questions of original meaning, prompting one proponent of gun rights to proclaim the day after the decision was handed down that, in this context at least, "we are all originalists now." But Justice Scalia's approach to original meaning was sharply at odds with Justice Stevens'. In the view of Randy Barnett, "Justice Scalia's opinion is the finest example of what is now called 'original public meaning' jurisprudence ever adopted by the Supreme Court," while Justice Stevens' dissent is an example of an "original-intent jurisprudence [that] was discredited years ago among constitutional law professors."

In Heller, Justice Scalia proclaimed that in interpreting the Second Amendment, the Court was "guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'" Any approach other than originalism, Scalia has argued, would make judges into legislators, applying their own personal values or "current societal values" rather than a preexisting "law." Like Barnett, most originalists today profess to be adherents of the "new" public meaning originalism, and eschew the "old" originalism's reliance on original intent. In fact, the "new" originalism is not really all that new. While early originalists such as Raoul Berger and Edwin Meese spoke of original intent, by the 1980s originalists such as Scalia and Robert Bork had begun a campaign to replace "original intent" with "original public meaning" or "original public understanding." A jurisprudence of original intent is problematic. The framers and ratifiers enacted the constitutional text, not their private intentions. Moreover, they may have had multiple and mutually inconsistent intentions, the aggregation of which into a single meaning can present intractable difficulties. Of course, the shift from original intent to original public meaning does not necessarily resolve these problems....

Language: en