Scalia on Meaning

Jennifer Senior: Had you already arrived at originalism as a philosophy?

Justice Antonin Scalia: I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

[New York Magazine, October 6, 2013]

He can’t be serious, right? “Words have meaning. And their meaning doesn’t change.” 

This passage from an interview with U.S. Supreme Court Justice Scalia leaves me bewildered. Someone making some of the most critical decisions in the world believes that you crank open the top of a word — or, to give him a bit of a break, a phrase — peer in, and thereby discover its meaning. Whether the prybar used is a dictionary, a history book, or judicial thumbs, the point remains: according to Scalia, meaning inheres in words. And — which must be taken as an injunction rather than a fact, the latter being demonstrably false — that meaning does not change over time.

It’s possible, I suppose, that he’s messing with the interviewer. His comments right afterwards about being a contrarian suggest that he’s having fun and letting fly a small reason petard.

I know that I bang on about this sort of approach to the interpretation of legal texts. I suspect that it’s a deficiency in me that I cannot imagine life as a literalist. Back when I had a desk I always promised myself I’d have a sign made for the top of it that said, “Everything Means Something Else.” Call it irony, or ambiguity, or metaphor, or “spirit” (as in that which doesn’t “kill” but “giveth life”), it’s simply a core element of civilization for me, one that connects language to life and makes both possible, or at least, more bearable. I guess that makes me Humpty and Scalia Alice. We’re certainly on opposite sides of the looking glass.


  1. One huge and very practical flaw of originalism, one commentator I read many years ago said, is that it reduces judicial analysis and constitutional and stautory interpretation to an excercise in historical and philological exegesis. What did the members of the constitutional convention mean by the words they chose in 1787? Interesting work for historians and philologists for sure, and judges can dabble in it, but thats not their job – and they are unfit to make historical judgements like that. rather, they are fit, contrary to what Scalia says, to assess the principles inherent in the text and apply those principles to cases, at least when the answer cant be found in the plain and obvious meaning of the text. Breyer is right – The Constitution is a living document!

  2. It’s hard to imagine two more differently-expressed views on the correct approach to statutory interpretation, isn’t it?:

    Words have meaning. And their meaning doesn’t change.


    …the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [source]