Originalism, Changed Meanings, and the Impossibility of "Meaning Updates"

The Economist's Prospero Blog has this post criticizing views that Justice Antonin Scalia expressed in his widely covered interview with New York Magazine.  The post's author, R.L.G., takes particular issue with
this statement by Justice Scalia:

Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

R.L.G. takes issues with the specific portion of the quote where Justice Scalia says that words' meaning "doesn't change."  After giving an example of the changing definition of the word, "silly," and discussing
Justice Scalia's opinion in the Second Amendment case of District of Columbia v. Heller, R.L.G. states:

[D]ictionary definitions are not the end of the matter. Words have meanings only in relation to their speakers and the real world. Meanings can remain constant only if societies remain constant. The “arms” quotation from Heller is telling. While the dictionary definition of “arms” may not have changed much, arms certainly have. Even the word "gun" has changed meaning; once referring only to a cannon, in the modern era it can refer to a rifle or pistol. That is an unsurprising semantic drift. The guns Wal-Mart sells today at knock-down prices to masses of customers would be the deadliest personal weapons in the world 1787. This is to say nothing of modern artillery and armour, or chemical, biological and nuclear “arms”.

I think that R.L.G. touches on a common critique of originalism, but does so in an overly abstract and uncharitable manner.  I would like to highlight how R.L.G.'s criticism is less fair than it should be, and how Justice Scalia's position should be interpreted to make it more defensible.  R.L.G. does raise some valid points, however, and I would like to put these abstract criticisms into a more concrete form.


R.L.G. takes particular umbrage at this portion of Justice Scalia's quote:

Words have meaning.  And their meaning doesn't change.

This statement -- standing alone -- is clearly incorrect, as R.L.G. illustrates throughout most of the article.  But the statement is followed by:

I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

Taking Justice Scalia's statement as a whole, it seems that he is not trying to defend the view that the meaning of words does not change -- rather he is defending the importance of the meaning of the words when they were placed into a statute.  This interpretation of Justice Scalia's jurisprudence is confirmed by a quick glance at his writings on the subject.  The meaning Justice Scalia focuses on does not change because he is singling out the meaning of words at a particular time.  So to criticize Justice Scalia by attacking the claim that words' meanings never change is nothing more than dismantling a strawman.

So Justice Scalia's originalism is not "fatally unusable," as R.L.G. insinuates, or it would at least be incomplete to claim it is due to the changing meaning of words.  But the claim that the Constitution's or other laws' meanings should be interpreted based on the meaning of the text at the time of enactment is still a controversial approach.  R.L.G. clearly feels this way, but does not really enunciate much criticism beyond some examples of how changing technology and events can lead to unforeseen circumstances.

I think that the changing meaning of words can be the basis of a more concrete challenge against Justice Scalia's originalism -- and I will label this argument as "the impossibility of meaning updates."

The argument notes that the meaning of words may change over time.  This is a premise that everybody can probably accept.  People probably accept that the meaning of words they use today will be different in the future.  I don't think that it is a very big stretch to presume that the framers of the Constitution understood this feature of language to be true.

Now consider Justice Scalia's approach to the Eighth Amendment's prohibition on "cruel and unusual punishment."  Justice Scalia's originalist approach would lead one to define "cruel and unusual" as "whatever was understood to be cruel and unusual at the time of the Amendment's enactment."  Accordingly, Justice Scalia thinks that punishments like flogging, that were carried out at the time of the Eighth Amendment's enactment, are "stupid, but not unconstitutional," even if those punishments would strike almost everybody as cruel and unusual today.

Now, let's say that the vast majority of Americans have accepted Justice Scalia's originalist approach and interpret the Eighth Amendment to only ban punishments that were cruel and unusual at the time of the amendment's enactment.  The American people are upset about this, and want to "update" the meaning of the Eighth Amendment so that it no longer permits flogging.

How can this change take place?  People want a prohibition on what is now considered to be cruel and unusual punishment, but the text of the amendment already prohibits cruel and unusual punishment.  There is the possibility of adding a list of prohibited punishments to the amendment, but this would require a lot of effort, possibly miss some forms of punishment, and change the fundamentally broad nature of the amendment.

Because there is no apparent way to update the meaning of an amendment while retaining its original text, we seem to be stuck with the original meaning of the amendment's words.  This is the case even if a supermajority of Americans want a changed meaning and would enact a prohibition on cruel and unusual punishment in the absence of the existing amendment.

This is an issue that the framers of the Constitution may have foreseen.  In an effort to avoid the impossibility of meaning updates, they may have used terms like "cruel and unusual" that are subject to changing interpretations.  These terms could then be interpreted in a manner that is consistent with the times.  Because there is no way to update the meaning of the Amendment's text, the terms in it were drafted in a manner that would be conducive to an evolving interpretation.

Admittedly, this formulation has its own problems.  There is no guarantee that the changing interpretations of constitutional provisions will match the preferences of a constitutionally sufficient supermajority.  But I think that the sheer inability of the American people to update the meaning of constitutional provisions, and the obviousness of this problem, raise questions about whether originalism is the most faithful way to interpret the Constitution.

I would not be surprised if this argument has been raised and discussed in the originalism literature -- an area of scholarship that I hope to explore in far more depth when I have the time.  When I find that time, however, I will stick to the scholarly discussions, since most popular talking points against originalism rely on straw men and oversimplification.