Here’s an intriguing item from The Washington Post: using text-search methods made possible by what we now call “Big Data,” a linguistics scholar claims to have demonstrated that Justice Scalia was wrong about the meaning of the Second Amendment’s reference to “bear[ing] arms.” That phrase was at the center of Scalia’s majority opinion in 2008’s District of Columbia vs. Heller, in which the court’s five conservatives ruled that the Amendment protects a right to possess firearms for individuals who do not belong to what the Amendment calls a “well regulated militia.” With the phrase “bear arms” appearing well over a hundred times in his opinion, Scalia concluded from his “review of founding-era sources” that “in numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”
However, after consulting two databases which together contain about 140,000 texts from the early modern and founding periods, Dennis Baron has concluded otherwise: “Non-military uses of ‘bear arms’ are not just rare — they’re almost nonexistent.” In the roughly 1,500 occurrences Barron found from the 1600s and 1700s, “only a handful don’t refer to war, soldiering or organized, armed action.” And that, he argues, makes perfect sense, since a non-military usage of “bear arms” was and remains simply bizarre: “we still can’t bear arms against a rabbit, or a mugger, or a tin can on a tree stump in the yard. That is just not how we talk.”
The increasing digitization of historical documents may present more opportunities for curious researchers to find other errors in originalist textual interpretations. The temptation to do this is understandable: After all, it’s satisfying (or, at least a small comfort in defeat) to know that even if the Court’s Heller decision went in the wrong direction, Scalia did not in fact have the Amendment’s text on his side.
But even if improved digital tools could undermine originalist jurisprudence, there are still downsides to employing them for that end. Start with the misguidedness of leaning too much on constitutional text. As David Strauss noted in the Harvard Law Review in 2015, many of our most cherished constitutional principles not only aren’t there in the text—they actually contradict what it says. Strauss’s list of constitutional “anomalies” lists a series of outcomes that are consistent with the Constitution’s text, but inconsistent with what have come to be our constitutional principles. “A state could have an established church,” he writes. Or states could strip voting rights from “poor people or gay people, because the Equal Protection Clause of the Fourteenth Amendment does not protect the right to vote.” Another: “The federal government would be free to engage in discrimination on the basis of race or sex, because the Equal Protection Clause applies only to the states.” These examples, Strauss argues, should cause us to rethink commonplace assumptions about the role text plays in constitutional interpretation. In short:
Clear text does not always govern, as the anomalies show; there are times when established principles are simply inconsistent with the text. Beyond that, constitutional “interpretation” usually has little to do, in practice, with the words of the text. There are times when the text is decisive, and it is never acceptable to announce that you are ignoring the text. But routinely the text, although not flatly inconsistent with the outcome of a case, has very little to do with the way the case is argued or decided.
Strauss’s argument suggests that battles over textual meaning are simply the wrong terrain on which to contest important disputes in constitutional law. And besides, there is something self-defeating about contesting Scalia’s ruling through an appeal to the same method Scalia himself might have used. We can observe that Scalia’s findings were mistaken, but to go further and suggest that his Heller ruling fails because its originalism was insufficiently rigorous has the perverse effect of reinforcing the very interpretive method that Scalia himself favored (and one that may already be in decline with his passing). The game may produce occasionally amusing results, but it’s not one liberals should play.