Scalia's Arguments Against Non-Originalism

Constitutional interpretation has been among the foremost politically pressing issues since the moment the ink from the founder’s pens dried. The vague, broad wording – originally intended by the founders to allow the constitution to grow with our fledgling democracy – has led to intricate disputes arising over issues such as the true meaning of the word “commerce” and the intended extend of federal jurisdiction in Marbury v. Madison. After over two centuries of contestation, the court has organically settled on two basic methods of interpretation, each championed by leading Supreme Court justices: Originalism and Non-Originalism. Despite arising from individual personal ideologies of justices, they have come to be the defining methodologies
He writes, “…the main danger in judicial interpretation of the Constitution … is that judges will mistake their own predilections for the law. … Non-Originalism, which under one or another formulation invoked ‘fundamental values’ as the touchstone of constitutionality, plays precisely to this weakness” (Scalia
Unlike the former, he does not simply chalk it down to an error in an otherwise satisfactory methodology, but acknowledges the innate flaws in Originalism and suggests an alternative: Non-Originalism, a method of interpretation based not just on centuries old generalizations and broad statements, but on the original spirit of the Constitution. Non-Originalists such as Brennan operate under the belief that the Framers intentionally wrote vague clauses as they did not want their individual intentions to dictate later interpretation. On this, Brenna writes “Those [Originalists] who would restrict claims of right to values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaption of overarching principles to changes of social circumstance” (Brennan 215). This statement perfectly encapsulates the Non-Originalist ideology; their goal is not to enable activist judges to usurp power, but to empower the just to enact meaningful change – such as integration of public schools – which while perhaps not explicitly stated in the letter, is fitting in regards to the spirit of the