Scalia/Garner Proposition 7: Fixed Meaning

by Ed Whelan

Part of a series on Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner

Justice Scalia and Bryan Garner’s fixed-meaning canon—“Words must be given the meaning they had when the text was adopted”—is the core tenet of the original-meaning species of originalism that Scalia has long espoused. (The canon would be worded slightly differently for the original-intent or original-understanding variants.) Their 15-page essay in defense of originalism is reason alone to acquire the book, and I won’t try to summarize it here. (My own succinct case for originalism is in this essay, “Are You an Originalist?”)

A hasty reader might imagine some conflict between the ordinary-meaning canon and the fixed-meaning canon: What if the current ordinary meaning of a text differs from the original meaning? But, properly understood, the two canons operate together to provide that the words of a legal text are to be given their ordinary, everyday meanings at the time the text was adopted.

I was struck to learn from Scalia and Garner that “[i]n the English-speaking nations, the earliest statute directed to statutory interpretation”—a law enacted by the Scottish Parliament in 1427—“made it a punishable offense for counsel to argue anything other than original understanding.” I don’t think it’s a sign of progress in our legal culture that many justices now maintain (see, e.g., my House Judiciary Committee testimony) that they may rely on evolving foreign laws to redefine the meaning of provisions of our Constitution.

I’ll also highlight Scalia and Garner’s apt response to the objection that originalism couldn’t yield some of the accomplishments of non-originalist rulings: “So what?” More fully:

It is in no way remarkable, and in no way a vindication of textual evolutionism, that taking power from the people and placing it instead with a judicial aristocracy can produce some creditable results that democracy might not achieve. The same can be said of monarchy and totalitarianism. But once a nation has decided that democracy, with all its warts, is the best system of government, the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is.

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