As I mentioned, the set of beautiful tributes to Justice Scalia in the new issue of the Harvard Law Review includes one from Justice Ginsburg. I do find it bewildering, though, that Ginsburg opens her entry in a way that indicates that she has a very poor grasp of Scalia’s principles of textualism and originalism.

Specifically, Ginsburg posits that there is some sort of tension between Scalia’s “fixed-meaning canon”—“Words must be given the meaning they had when the [legal] text was adopted” (Ginsburg’s bracketed material)—and Chief Justice Marshall’s statement in McCulloch v. Maryland that “Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea.” She states that her own view “accords with the great Chief Justice’s” and goes no further than to state that she “believe[s] Justice Scalia would agree that Marshall had a point.”

The simple fact is that the two propositions that Ginsburg imagines to be in tension deal with different matters. Indeed, in Reading Law (co-authored with Bryan Garner), Scalia sets forth his “ordinary-meaning canon” immediately before his “fixed-meaning canon”: “Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.”​ That ordinary-meaning canon illustrates the obvious point that Scalia understood that any word might have different meanings. In explaining that “contextual and idiomatic clues” help reveal “which of several possible senses a word or phrase bears,” Scalia observes that a word in isolation “means nothing certain”:

A check might be an inspection, an impeding of someone else’s progress, a restaurant bill, a commercial instrument, a patterned square on a fabric, or a distinctive mark-off.

To state the point differently: The ordinary-meaning canon assists in determining which meaning of a word was, per the fixed-meaning canon, fixed in a legal text. Contrary to what Ginsburg imagines, Marshall’s recognition that “no word conveys to the mind, in all situations, one single definite idea” does not remotely suggest that judges are not obligated to determine, and abide by, that original meaning.

Addendum (11/16): On further review of Reading Law, I am not surprised to discover that Justice Scalia and co-author Bryan Garner cite with approval the very passage from McCulloch v. Maryland that Justice Ginsburg somehow imagines is in tension with Scalia’s originalism. Specifically, they quote that passage in support of their straightforward observation that “language [is] notoriously slippery.” (P. xxix.)​