Originalism and the Dictionary Flip-Flop

Antonin Scalia believes the Constitution's language must be interpreted in keeping with the original public meaning of the text. That is to say, he believes that the Constitution is what was ratified, as understood by the ratifiers, and nothing else. Okay, fine: I can see his argument, actually. But looking at a couple of examples of his application of that theory reveals what's so wrong about the way he puts it into practice. In DC v. Heller, the recent case establishing for the first time ever an individual constitutional right to gun ownership, Scalia has to defend against what is, I admit, one of the relatively more frivolous challenges to originalism. We on the left like to say that, if the Constitution means today what it meant in 1789 or 1791 or whenever a given amendment was ratified, why shouldn't the 2nd Amendment only protect 1791-era weaponry? After all, the idea that this was a right to carry handguns or automatic weapons or whatever was not the original public meaning of the amendment, was it? Well, Scalia says, you're doing it wrong. The proper method is to look in 1790-era dictionaries under the word "arms," which give you a definition about implements used for violence and self-defense.

But then we have a problem. Because, you see, Scalia also thinks that the phrase "cruel and unusual punishment" only means those punishments that 1791 Americans thought were cruel and unusual. He does not direct us to a dictionary for the meaning of the words "cruel," "unusual," and "punishment," and then try to understand the meaning of the phrase through that lens. No, he just wants to run down a litany: was hanging okay? Yep. Were the stocks okay? Yep. Was flogging okay? Well, here he wavers, admitting that while the answer is yes, he himself, along with other "faint-hearted" originalists, would probably "compromise" and agree that public flogging is off limits. But see the problem: he's moving back and forth between the dictionary method and the application method, between looking at what the words meant at the time and looking at what consequences they had at the time. And it sure looks like he's picking and choosing his method, as well as when to get "faint-hearted," just based on his own personal policy preferences. He likes guns, so of course it's absurd to protect only 1791-era guns. But he also likes punishments, so he only wants to prohibit punishments that were considered cruel and unusual in 1791. Except for some punishments, which he doesn't like, so he'll wimp out of actually applying his doctrine there. His opinion changes, his method changes. I just don't see how to interpret this other than by saying, this theory is a load of bull, Nino Scalia is just voting for his own policy preferences. He is, in other words, legislating from the bench, the exact thing that he loves to chide liberals for doing.