From the Right



Justices Ginsburg and Scalia interpreted the Constitution very differently, but agreed on much

Judge Andrew P. Napolitano on

Justice Ruth Bader Ginsburg served on the Supreme Court for 27 years until her death late last week. Her tenacious advocacy for the rights of those she perceived as legally disadvantaged, combined with her outsized intellect, moved the vector of the court's direction as few justices have in history. She championed the rights of women and members of the LGBTQ community.

Justice Ginsburg enjoyed a famous public friendship with the late Justice Antonin Scalia. She was a liberal Democrat. He was a conservative Republican. She believed in the "living Constitution." He believed that the meaning of the Constitution was fixed at the time of its ratification.

She believed that the Constitution enabled Congress to right any national wrong. He believed that Congress was limited to those federal areas of governance delegated to it by the Constitution. Yet, many times, they ended up on the same side of Supreme Court rulings.

Here is the backstory.

Justice Scalia championed a theory of interpretation of the Constitution known by two names: "textualism" and "originalism." Textualism teaches that the words of the Constitution mean what they say and its language, as well as the language of statutes, should be interpreted in accordance with the plain meaning of the written words.

When the words are ambiguous or inadequate to address a contemporary problem, then the proper mode of interpretation is originalism. Originalism teaches that the meaning of the Constitution's clauses and values were firmly established as the supreme law of the land when the states ratified it in 1789.


The argument for this theory offers that if the meaning of the Constitution changes with the passage of time, or if individual justices could reinterpret the words in the Constitution differently from the plain meaning employed by the Framers, then the Constitution is not the supreme law of the land as it proclaims itself to be.

This theory also teaches that Congress may only do what it is authorized to do in the Constitution. Originalism observes that the way to change the Constitution is not by life-tenured unaccountable justices reinterpreting it but by elected state representatives amending it.

Justice Ginsburg took the opposite view. She looked at the Constitution as a moral document that empowered the justices' interpretations in discerning right from wrong -- and thus, to issue proper moral rulings. This view, the "living Constitution," teaches that many of the words and phrases in the document are so vague as to enable justices to adapt their meanings to our modern times, which the Framers could not have imagined.

This theory teaches that Congress can right any wrong, regulate any behavior and interfere in any event or state of affairs so long as the issue to be addressed is national in scope and there is no expressed prohibition on Congress doing so in the Constitution.


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