Interpretation

In fact, Scalia isn’t really an originalist at all. He is what I would call a “New Deal/Brown originalist.” That is, he is a conservative who accepts the New Deal and very basic elements of the civil rights revolution because all Americans have come to accept them, but insists that we go no further down that road. Scalia is not defending the framers; he’s actually defending a conservative version of the constitutional status quo circa 1960. There is no particular reason to defend the Constitution of 1960 from further change. It is certainly not the framers’ constitution. - Jack Balkin

I was reading Story’s Commentaries on the Constitution recently and felt a pang of concern when I reached his section on interpretation. Story states a number of times how important it is to respect the literal meaning of the document’s words or, where literal meaning does not adequately capture a clause because the clause describes a value or principle instead of a strict requirement, it is important to remain true to what principle the Framer’s meant the words to embody. Story specifically mentions the Commerce Clause as designed to limit the scope of the federal government.

An old debate, to be sure, but it is nevertheless difficult to discount Story as an excessively myopic originalist; he is a giant of interpretation.  It is always difficult to counter originalist principles with alternative theories because it often involves defending a position that rests upon a slippery slope.  It appears clear that a strict federalist-originalist approach would be infeasible today, however, there is genius in the vertical separation of sovereignty.

All of which is to say, I found Balkin’s quote impressive.  Even Scalia has recognized the permanence of certain social advancements that find their hook in the Commerce Clause.  It is reminiscent of Rehnquist’s acquiescence to 40 years of Miranda.  With this in mind, it seems appropriate to approach certain interpretative tasks not from the perspective of the Framers but as a contemporary debate over whether we should go any farther.  The Framers’ intent provides an important data point for determining whether a law would stretch the original meaning more, but that intent is also very distant from contemporary questions.