I’ve often wondered why so many highly intelligent people – including Scalia – are so enamored of a legal philosophy that often seems anachronistic and ill-suited to the realities of post-industrial modernity. I’ve even written before about how originalism seems eerily related to a form of religious fundamentalism where the religion’s founders are deified and the high priests urge the people to return to the values of the past, lost golden age. My views have evolved somewhat, but I still believe that a big part of the passionate attachment many feel for Bork, Scalia, and originalism is essentially religious in nature, and is one of the many manifestations of the wider backlash against Enlightenment secularism that includes people like James Dobson and Osama bin Laden.

But viewed from another perspective, Scalia’s originalism is an ideal of Enlightenment values. The beauty of Scalia’s jurisprudence is that it is so logically coherent – and it is this perfect coherence that emits the gravitational pull on so many young impressionable legal minds. With Scalia, like Freud, there is an answer to all questions. Or more precisely, there is always an answer to that most fundamental of questions – “What does the Constitution mean?” To Scalia and his disciples, this question is no different from a mathematical proof. You merely need to work through the steps to answer a question about what phrases like “cruel and unusual” mean. It’s all fairly simple. Just work back to whatever meaning became frozen in 1789 and apply that meaning today. “Cruel” means “that which was cruel in 1789.” It’s a perfectly coherent system that is eminently logical and fully consistent with Enlightenment values.

But if the 20th Century taught us nothing else, it taught to us to beware of systems that have answers to all questions. Like most universal models, Scalia’s error is foundational.

There are of course numerous objections to raise against originalism – (1) that collective “understanding” is conceptually barren and did not exist; (2) that the human mind in the 21st century is incapable of discovering it and properly applying it even if it did exist; and (3) that even if it did exist and we could know it and apply it that we should do so given that women and slaves were excluded from the process that froze the Constitution in place for all eternity. But putting those aside, I want to focus on the textualist objection to Scalia’s originalism because I think it shatters the very foundation of his jurisprudence. After all, that’s what I am – a non-originalist textualist.

To me, the Constitution consists of words and nothing else. Text is the essence of what it is. But as any linguist would tell you, a word never has a single determinant meaning. Instead, it has a range of plausible meanings. The word “cool” can mean very different things, even though the actual text of the word itself remains the same. Words also change through time, and changes in background context can also change the meaning of the word. The text of the Constitution is no different. Words like “cruel,” “unreasonable,” “speech,” “commerce,” “cruel and unusual,” and “search” lack a clear determinant meaning. That’s not to say they are wholly indeterminate, but rather that there is a range of plausible meanings.

Here’s what I’m getting at. Scalia looks at the Constitution and sees “understandings” – I look at the Constitution and see words. Scalia’s entire legal edifice is built not upon words, but upon a single understanding of a word. In other words, it’s built not on the meaning of the text, but upon the selection of a single subset of the word’s total possible meanings – one that is contingent and arbitrary. I see no reason – and more critically, no justification in the text – to favor one “understanding” over another. I look at the word “cruel” and see that it could have a number of different meanings – not an infinite number, but a range of them. Scalia arbitrarily selects one of these meanings, ties into the rhetorically pleasing image of the framing, and builds an entire jurisprudence upon it.

To me, the Framers ratified words. They did not ratify floating penumbras of understandings that surround and envelop the words. The words we have. The understandings we don’t. Even assuming such a thing as “collective understanding” actually exists – it exists in fragmentary clippings of newspapers and speeches from the 1700s. The nation should not be bound by the conclusions of Randy Barnett’s historical research.

When you get away from this idea that we cannot stray from the brooding omnipresence in the sky that is the “original understanding,” you can begin to inject more pragmatism and more democratic deliberation into matters that effect hundreds of millions of American lives. Obviously, we cannot stray from the text. “Cruel” can never mean something that only one state outlaws. But once we are within the bounds of the plausible, we can engage in policy analysis and other pragmatic inquiries to determine what the meaning should be. If “cruel” could plausibly mean “A”, “B” or “C”, then is it so wrong to ask what the right answer should be, when the answer could be any of the three? This is pragmatic textualism – constitutional interpretation’s Third Way. Its motto is:

When choosing among textually justified outcomes, it is emphatically the province and duty of the judiciary to say what the law should be, not what it is.

It’s a serious point. The judiciary can't say "what the law is," because there "is" no one meaning. Whenever any court interprets a boundedly indeterminate word, it is essentially saying what the law "should be."

When Scalia sees uncertainty, he tries to impose a single understanding of a word on to the public (one that uncannily meshes with modern day conservative economic and cultural preferences). When I see uncertainty, I want a pragmatic, democratic give-and-take about which understanding – or meaning – to adopt (assuming of course we’re within the bounds of the text).

That's why Scalia's jurisprudence is both consistent and antithetical to the Enlightenment. Getting away from the religious aspects of originalism, it is a tightly constructed narrative that is logically coherent. However, the system is so rigid and backwards-looking that, taken to its logical implication, the practical effect of the interpretation upon the millions of people who must live with it is completely irrelevant. This one particular understanding is all that matters.

Fortunately, the Framers were smart enough to give us more freedom than that.

The earth belongs to the living, not to the dead. Thomas Jefferson