Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
; In earlier posts, I outlined the difference between elitist and populist versions of originalism, and noted that Justice Antonin Scalia seems to prefer a populist approach, under which the text of the Constitution should be interpreted as understood by ordinary readers at the time of enactment, rather than as understood by legal experts.
Legal scholars Michael Rappaport and Michael Ramsey suggest that Scalia's position on this issue may be internally inconsistent (Rappaport) or that Scalia did not really mean to endorse a populist approach to originalism at all.
The relevant passage at issue is this one from Scalia's majority opinion for the Court in District of Columbia v. Heller (2008), the first case in which the Supreme Court recognized an individual right to bear arms under the Second Amendment):
In interpreting this text [the Second Amendment], we are 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." United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220…. Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
I think this pretty clearly endorses what I call a populist approach. Scalia (quoting Sprague) emphasizes that the words must be understood in their "ordinary" meaning, not a "technical meaning" and then adds that technical meanings unknown to ordinary citizens at the time of the Founding should be excluded. That seems to exclude understandings of the text shared by legal professionals (or other elites), but not ordinary readers.
I. Is Scalia's approach contradictory?
Rappaport agrees that this passage seems to support a populist approach to originalism, but suggests that Scalia endorsed a more elitist approach in other opinions. For example, he argues that Scalia used technical meanings in interpreting the Confrontation Clause of the Sixth Amendment in two of his previous opinions. It is entirely possible that Scalia has been inconsistent on this point. Many originalists have not given careful consideration to the distinction between elitist and populist originalism, and the difference it might make. Few have offered much in the way of a sustained argument for preferring one or the other, and many betray little realization that there even is a meaningful distinction between the two. While Heller demonstrates, in my view, that Scalia endorses a populist approach in principle, he may not have made a careful and systematic effort to stick to it or consider its implications.