Bryan Garner's tribute to his friend and co-author Antonin Scalia
Nino (the affectionate nickname he insisted on) was furious at me. “I’ve spent my whole judicial career calling it originalism, and if I were to change it now, I’d look foolish.”
“But originalism is a snarl-word for some people, Nino, and it may hurt us.”
“Well then maybe you’ve made a grave mistake throwing in with me.” He hung up the phone on me—the first and only time that ever happened in our 10-year writing partnership.
Thirty minutes later I followed up with a contrite email message assuring him that I wasn’t trying to undermine his legacy. We spoke again about 30 minutes later, and he apologized. We talked at some length about what to name the canon of construction that words in legal instruments don’t change their meanings over time. Finally we settled on the “fixed-meaning canon,” and it became No. 7 in our roster of 57 valid canons of construction in Reading Law. Our text also frequently refers to originalism, but the canon’s name became “fixed meaning.”
Many judges who’ve read the book have commented that, although they expected to reject the fixed-meaning canon, they found our justifications compelling. I unearthed a great many authorities that Scalia hadn’t seen before, and in the end we made a strong historical case for the canon. The few critics we encountered didn’t really lay a glove on us when it came to No. 7—nor on most other points, as an independent assessment published in 2014 in the Journal of Law found.
Because there’s so much confusion about originalism, or fixed meaning, I thought I might—in tribute to my late co-author—coolly set out the term’s meaning and its historical basis. I don’t do it as a political clone of Scalia: For what it’s worth, I’m pretty apolitical, but we disagreed on some hot-button issues. Yet the justice never questioned my bona fides. What we had in common was an abiding love of the English language. We also both believed (and I still believe) that a judge’s personal beliefs about policy should remain largely irrelevant to outcomes.
“If I were king,” he said in Hong Kong during our last tour together in February, “I’d lock up every flag burner for 20 years! But we have a First Amendment, and I’m not king.” Hence he voted with the majority in the flag-burning case: A protest that involves flag burning is protected by the First Amendment. Yet he deplored the act.
But let’s get back to the fixed-meaning canon. It’s a simple idea: “Words must be given the meaning they had when the text was adopted.” It makes a good deal of sense. And if it isn’t true, then what is the competing theory? By the way, it’s hardly perfect, and usually originalism doesn’t even come into play; “textualism” (a commitment to the fair meaning of the governing words) always comes into play, but originalism in only a small fraction of cases.
ALL THE NIMRODS of 1910
Words change their meanings in wholly unpredictable ways. My illustration of that point was one that Scalia loved. Let’s say there’s a 1910 statute that provides: “All nimrods in this state must carry a license.”
In 2015, someone sues to invalidate the statute as being discriminatory against the intellectually disabled. What’s the standard of being a nimrod? An IQ below 80? Why should low-intelligence people have to carry licenses? So the statute gets challenged on equal protection grounds.
The question is whether the 1910 meaning of nimrod governs, or the 2015 meaning. Ask almost anyone today, especially anyone under the age of 50, what a nimrod is, and you’ll be given any of several possible synonyms: nincompoop, simpleton, doofus, idiot, moron, etc. Scalia was shocked by this revelation: To him, a nimrod was a hunter. He disputed me. We called in his law clerks, each of whom insisted that a nimrod is a stupid person.
He was even more astounded about the reason for the change in meaning: Bugs Bunny. In several episodes of the famous cartoon, the beloved rabbit emerged from a hole to insult Elmer Fudd, carrying his blunderbuss: “Nimrod!” And so several generations of Americans have learned, by osmosis from Bugs, that a nimrod is a dunderhead.
What should a judge do in applying the 1910 statute? Apply the new meaning or the old? Well, that’s an easy example: the old, of course. It’s a reductio ad absurdum, one of Scalia’s favorite turns of mind. Take a principle to its logical extreme to show that it has no bounds or doesn’t work.
What really surprised Scalia was my pointing out that (1) several law professors claim that originalism dates only from the 1980s, and (2) the first statute ever enacted within an English-speaking jurisdiction on the subject of statutory construction—dating from the 15th century—forbade any approach other than originalism.
It’s true that the word originalism dates only from the 1980s. It’s an example of a “retronym,” a word invented to account for an age-old thing when some newfangled thing has emerged. Nobody referred to landlines until wireless technology came around; before that, all telephone lines were landlines. Nobody referred to whole milk until skim milk was developed; all milk had been whole milk. You get the idea. So it was with originalism: That was the only method that existed until the mid-20th century.
Some history is in order.
In 1427, the Scottish Parliament enacted the first-ever English-language legislation on statutory construction. Its title was “That nane interpreit the Kingis statutes wrangeouslie.” You can read it despite the irregular spelling. The statute made it a punishable offense for any lawyer to argue anything other than original meaning: “Item, The King of deliverance of councel, the manner of statute forbiddis, that na man interpreit his statutes utherwaies, then the statute beares, and to the intent and effect, that they were maid for, and as the maker of them understoode: and [whosoever speaks] the contrarie, shall be punished at the Kingis will.” In various presentations we made together, Scalia would quote this statute in a funny Scottish brogue, to the delight of every audience.
Time did nothing to alter the Scottish view except perhaps to remove the penalties against counsel. The influential Sir Edward Coke espoused fixed meaning in 1644, and so did an English judge five years later: “A statute cannot alter by reason of time.” In 1765, the highly authoritative William Blackstone, with whom all American lawyers for a century were intimately familiar, insisted that a 14th century statute must be given its 14th century meaning, not its 18th century meaning. If you have a copy of Blackstone’s Commentaries on the Laws of England, look at volume 1, page 60. It’s the only passage in which Blackstone addressed the point.
The whole idea of a written constitution was to make its meaning stable and enduring. Several founders can be quoted on point. And all the statements about the issue come down foursquare in favor of originalism. As Daniel Webster, arguably the greatest 19th-century American lawyer, said in 1851: “We must take the meaning of the Constitution as it has been solemnly fixed.” It’s true not just of written constitutions but also of statutes, regulations, city ordinances and contracts—and with those latter documents, the doctrine is generally uncontroversial.
The basic idea is stable meaning. Then there’s the question of application to the modern world. That’s where things get more difficult. Under the Fourth Amendment, how do we assess a GPS tracker that law enforcement officers affix to a vehicle? A fellow originalist, Justice Samuel Alito (concurring), likened it to having a constable riding at all times in an 18th century carriage—the closest analogue he could invent. Naturally, that would violate the basic expectations of privacy. Writing for the Supreme Court, Scalia pronounced that GPS trackers are illegal tools for law enforcement. That opinion, Jones v. United States, changed the way police work is conducted in the United States. Without his influence, we might have a country in which tens of thousands of GPS trackers are attached to cars everywhere, and every movement of countless citizens would be monitored remotely by the central government.
IF WE COULD TURN BACK TIME
People get impatient with the fixed-meaning canon, of course. The U.S. Constitution is unbelievably hard to amend. In early February, Scalia told Asian audiences that he had once calculated that 2 percent of the American population could block a proposed constitutional amendment. Afterward, the two of us agreed that if we could time-travel for five minutes and speak briefly to the founders, we’d encourage them to make it easier to amend the Constitution by democratic means.
In the absence of that ease, however, our polity has taken to asking the Supreme Court to amend the Constitution from time to time. The reason is understandable. Democracy is messy and inefficient, and reformers get impatient.
Although I didn’t succeed in persuading Scalia to change the term originalism, I did ultimately succeed in persuading him to change the term for its near-antonym: the living Constitution. That term, of course, is a euphemism for an ever-changing understanding of our founding document. In 1961, Justice William O. Douglas wrote a book called A Living Bill of Rights. New things could be discovered by the Supreme Court term by term in such a document.
It was a clever euphemism because if you’re not in favor of a living Constitution, then apparently you want a dead one. Scalia sometimes joked about that, but it was a self-defeating joke. If you ask the American people whether they want a living or a dead Constitution, of course they’ll answer “living”—with little further inquiry. But if you ask them whether they want a stable or a morphing Constitution, they’ll answer “stable.” Naming rights are powerful. If you use your opponent’s terminology, you’re probably engaging in futility.
Scalia finally came around to that idea in 2013—after he’d spent 30 years arguing against the living Constitution. After that, he abandoned the euphemism of his intellectual nemeses and called it the “changing Constitution.” Was it too late? In at least one precedent-setting case, yes. He lost the argument in Obergefell v. Hodges, which established a new right that many people favored: same-sex marriage.
One important thing to remember about Scalia is that, despite what his detractors say, he was committed to being principled: He believed in democracy and in the separation of powers. He didn’t think judges should innovate rights. In the popular mind, this view gets equated with homophobia. In the popular mind, judges are philosopher-kings who get to enact the policies they favor. When that becomes the prevailing notion among judges and the populace as a whole, then the appointment process becomes ever more political. It’s not so much about judging as it is about policymaking.
THE SOOTHSAYER’S STALL
We spent 14 of his last 23 days together, Scalia and my wife, Karolyne, and I. There was no extra security except at airports. We traveled to Singapore and Hong Kong, speaking at universities about our two books. We were together morning, noon and night—about 14 hours a day, all told. He was in high spirits, and he loved exploring other cultures. He discovered one Asian delicacy that he craved: jellyfish.
On our last day in Hong Kong, Feb. 3, we went to a Taoist temple. People were engaged in all sorts of prayers and divinations of the future by means of sortilege (shaking sticks out of a box to foretell their fortunes, as our tour guide explained it). Scalia was fascinated by a sign for the “Soothsayer’s Stall,” and he paused to take some photos of it because he liked the word soothsayer. I took photos of him taking those photos.
Karolyne and I decided to have our palms read by that soothsayer, and we were both told that we’d “easily” live into our late 80s or early 90s. The soothsayer also said some startling things: For example, he somehow knew that I had two daughters and no other children. Scalia looked on with great interest.
“Nino, you ought to get your palm read,” I said. I wondered whether the soothsayer could accurately say he had nine children and 36 grandchildren.
“No. I don’t want to know when I’ll die.”
“Come on!” I insisted.
He couldn’t have thought that the end would come so soon. I certainly wouldn’t have believed he would live only 10 more days. I’m still stunned every time I hear the words “the late Antonin Scalia.” It’s hard to register the reality of it.
Already his intellectual enemies have predicted that originalism will have less influence now that he’s gone. Yet others predict that his influence will be much greater in death than it was in life. Time will tell.
One thing I do know is that my own life won’t be the same without him. I will miss him as long as I live. Despite our political differences, I loved the man. And those were my parting words at DFW Airport as he headed on to Washington, D.C., on Feb. 4: “We love you, Nino.” It was only the second time I’d ever said that. He seemed to get choked up for a second. “Thank you both,” he said. “I’ll see you again soon.” He turned, flanked by three U.S. marshals, and strode toward his next flight. As always upon parting after a long visit, Karolyne and I watched until he disappeared from our sight.
This article originally appeared in the April 2016 issue of the ABA Journal with this headline: “A Tribute to Nino: Justice Scalia’s co-author offers an insider’s view of his fixed-meaning canon—including Bugs Bunny and the Scots—and their last trip together.”
Bryan A. Garner is the distinguished research professor of law at Southern Methodist University.