Justice Antonin Scalia Speaks at Bork Memorial Lecture

October 1, 2013 — “Originalism is not perfect; it does not overcome the human frailties that inevitably plague all efforts at judging,” said Supreme Court Justice Antonin Scalia, speaking at the inaugural Robert H. Bork Memorial Lecture at Georgetown Law. “But it is the best we have, and that is all that matters.”

The September 30th event, hosted by the student chapter of the Federalist Society and the Georgetown Center for the Constitution, honored the late Judge Bork, who believed along with Scalia that the Constitution should be interpreted according to its original meaning. The Bork Lecture is to become an annual event, hosted by different law schools.

As Scalia explained at the outset, originalism holds that the Constitution “bears a static meaning which does not change from generation to generation.” While constitutional provisions must be applied to new phenomena — “the First Amendment, for example, had to be applied to radio in the 1920s and has to be applied to the Internet today” — an amendment’s application to preexisting phenomena does not change, the justice said. 

This means that certain libelous speech that was originally unprotected by the First Amendment remains unprotected today, and understanding what was and was not protected can help us determine how the amendment can be applied. “Originalism requires a careful, honest — shall we say judicious — use of history,” said Scalia, who earned a B.A. in that subject from Georgetown University in 1957.

Even the “the most thoroughgoing nonoriginalist” will often have to turn to history to determine the meaning of individual words and phrases like writ of habeas corpus, the justice said. But it’s about more than just lexicography; the 2008 District of Columbia v. Heller case, for example, looked at the Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed.” 

“This engendered historical inquiry, which showed that, indeed, the right to have arms for personal use … was regarded at the time of the framing as one of the fundamental rights of Englishmen,” Scalia said.

The question, he said, is not whether judges can be perfect historians; historical inquiry into the original meaning may be difficult, and originalists will disagree as to the right answer. Yet originalism “far surpasses the competition,” Scalia said. “History is a rock-hard science compared to moral philosophy.” 

Scalia was welcomed by Dean William M. Treanor; Bork's wife, Mary Ellen; and Professor Randy Barnett, who led a 15-minute question-and-answer session in which the justice fielded questions ranging from originalism to legal education.

“Justice Scalia, really more than anyone else, is responsible for what has come to be called the new originalism, which focuses not on the intentions of the framers but on the public meaning of the text of the Constitution,” said Barnett, who directs the Georgetown Center for the Constitution. “If he made no other contribution to originalism, that would be enough.”