‘Nobody Ever Thought It Meant That’

By Bryan A. Garner

Thursday, June 12, 2025

 

Last time, we explored some misconceptions about originalism in legal interpretation. They have led to the besmearing of what in most contexts is an anodyne doctrine: that we need a good glossary to read Chaucer and Shakespeare and can undoubtedly benefit from a historical dictionary when reading 18th- and 19th-century texts whose language may be unfamiliar — or, worse, seem familiar but actually denote things other than what we might superficially think.

 

That’s why textualists often mention text and tradition. As Justice Antonin Scalia wrote when dissenting in Planned Parenthood v. Casey (1992) — a sequel to Roe v. Wade (1973) — “Texts and traditions are facts to study, not convictions to demonstrate about.” He added:

 

If in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, . . . then a free and intelligent people’s attitude toward us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school — maybe better.

 

Ouch.

 

Text and tradition. The phrase is so closely linked to Scalia that Professor Ralph A. Rossum, when writing a career study, titled his 2006 book Scalia’s Jurisprudence: Text and Tradition.

 

In conversation, Scalia loved to say, “Nobody ever thought it meant that!” He objected to the idea that constitutional law — especially in the discovery of newfound constitutional rights — had come to have little to do with the Constitution itself. He recoiled at the idea that interpret had lost its role as a transitive verb. Judges interpret, yes, but what are they interpreting? They should be interpreting a text.

 

By way of disclaimer, I might note, as Scalia’s co-author of Reading Law: The Interpretation of Legal Texts, that he and I differed politically on many points. I have a strong libertarian bent. Before various audiences, Scalia joshingly called me his “bleeding-heart co-author.”

 

My own views on these matters should be irrelevant, but they’re a prelude to saying that he and I never disagreed about the outcome of the more than 600 cases we analyzed together to write the book. That’s because we were both committed textualists: We defended the idea that a judge’s personal political beliefs shouldn’t affect the judge’s fair reading of a statute, contract, or other text. Value judgments shouldn’t come into play much — ideally, not at all. The goal is to have neutral principles of judging.

 

If value judgments are welcomed, then judicial predilections left and right will skew interpretation. Courts will then depart from fair readings of the texts they’re interpreting. Take, for example, a case decided by a state supreme court last year. In Alabama, the 1872 Wrongful Death of a Minor Act gives personal representatives the right to bring a lawsuit “when the death of a minor child is caused by the wrongful act, omission, or negligence of any person.” Somebody sued arguing that “minor child” includes a frozen embryo created through IVF.

 

Overriding both text and tradition, Alabama’s high court held that frozen embryos are indeed “minor children.” Did anyone in 1872 think the text meant that?

 

Of course, distortions can occur on both sides of the political spectrum. Think of the lawyers who in 2011 filed a lawsuit against SeaWorld in San Diego, arguing that the 13th Amendment’s prohibitions of slavery make the aquarium’s keeping of orcas unconstitutional. Did anyone ever think the text meant that?

 

Other fascinating linguistic matters come into play, not least of which is the terminology denoting the various modes of interpretation. Originalism sounds alarmingly like creationism — so it tends to scare people on the left. Meanwhile, the term living Constitution, dating from the 1920s, is really a euphemism for a constitution that is amended not as provided for in the document itself but instead, term after term, by the Supreme Court. Of course, the expression living Constitution was invented and propagated by progressives who favor that kind of amendment.

 

(In fairness, the Founding Fathers did make the U.S. Constitution much too difficult to amend. In practice, amendment is extraordinarily hard to achieve. And so we’ve left it to the Court instead of the People.)

 

But think again about the living Constitution. What’s the antonym? Well, of course, it’s the dead Constitution. Scalia used to joke that the Constitution is dead.

 

In my kitchen in January 2013, I suggested to him that attacking something called the living Constitution was a mistake: “Find another name for it,” I said.

 

“But everyone calls it the living Constitution.”

 

“You’re losing the debate in the minds of the American people. They don’t want the opposite of a living Constitution.”

 

“Are you saying I’ve made a mistake over the past 30 years by using the other side’s terminology?”

 

“I think so. If you instead asked the American people whether they’d rather have a stable Constitution or a highly volatile one that morphs without amending it, what would they say?”

 

“Stable, no doubt,” he said. “I can’t believe I’ve never thought of this before.”

 

That evening, Scalia and I made a presentation to a large audience at Southern Methodist University. Midway through our talk, he said: “I used to say that the Constitution is not a living document. It’s dead, dead, dead. But I’ve gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It’s an enduring Constitution, not a changing Constitution.” I was keenly aware of his words, and I made a note of them the next morning.

 

That note became important when, two days after the event, the Dallas Morning News ran an article about our presentation. It quoted Scalia as saying about the Constitution: “It’s not a living document. It’s dead, dead, dead.” End of quotation.

 

When I shared the article with my co-author, he replied by email: “Apparently the print media in Texas are as biased as the print media elsewhere.”

 

More than three weeks later, after a fair amount of wrangling, the Morning News ran an inconspicuous correction: “The article quoted Scalia as calling the U.S. Constitution ‘dead, dead, dead.’ He went on to say he believes it is not a document that ‘morphs’ but rather an ‘enduring’ one.”

 

But the damage had been done when the original piece ended the quotation with “dead, dead, dead.” I can assure you that nobody in the audience, nobody hearing his words that night, thought he meant that.