Right Side of the Rainbow

Adam Cohen in the New York Times: “Justice Breyer has just published a book, ‘Active Liberty: Interpreting Our Democratic Constitution,’ which is in part a response to those, like Justice Antonin Scalia, who believe the Constitution should be interpreted based on the ‘original intent’ of the founders.”

Justice Breyer’s book may well be a response to those who believe in “original intent.” But if so, it’s not a response to Justice Scalia, for Justice Scalia believes no such thing:

… it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. That seems to me one step worse than the trick the emperor Nero was said to engage in: posting edicts high up on the pillars, so that they could not be easily read. Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver. [Bold added; italics in original.]

Justice Scalia is a proponent of textualism, not of original intent. There is a difference.