The Founders Were Right About Original Intent — And So Was Justice Scalia

“I write separately to call attention to this Court’s threat to American democracy.”

by Joshua Charles
February 17, 2016

“I write separately to call attention to this Court’s threat to American democracy.”

So wrote the late Justice Antonin Scalia in his Obergefell dissent.

Scalia, or “Nino,” as his colleagues affectionately knew him, was the foremost advocate of what has become known as original textualism. He believed that the Constitution, though not always clear, and certainly subject to a degree of interpretation, was a legal document made up of words, words that had a relatively fixed meaning to those who adopted it (including the subsequent amendments).

But why should this be so important? James Madison provided the explanation:

In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness. We look back, already, with astonish…