Do Words Matter?

December 14, 2010

A few weeks ago, Supreme Court Justice Antonin Scalia spoke at an event in Richmond, giving an address entitled "Do Words Matter?" Although his main point--that the U.S. Constitution should not be viewed as a "living document"--is not surprising giving his earlier remarks on the matter, some of his remarks in the context of the meaning of words are quite interesting. He argued:

Unless the words have meaning and unless judges give them their fair meaning, democracy doesn't work.
He gave a couple of good examples: that "nimrod" in the Bible meant a great hunter but Bugs Bunny made it mean idiot, and that "cruel and unusual punishment" clearly did not include the death penalty since that was a common form of punishment when that constitutional phrase was written.

Scalia's examples are good reminders about how much language changes (so that "bad" can now mean "good"), just like words can have different meanings at the same time for different people (so that some people still use "bad" to mean "bad"). It is precisely this argument about language that makes Scalia's attacks on viewing the Constitution as a "living document" so odd, since words--as he just proved--are living and constantly changing. Yet, somehow, he believes that it remains obvious exactly what was meant by the use of particular words over two hundred years ago. As he argued in his speech:
The Constitution says what it says and it doesn't say anything more.
Yes, but the problem is figuring out how to read what it says--both because the meaning of some words have changed since then and because words are merely symbols and thus could be misread even by contemporaries of those who wrote them. Apparently, we need to quit putting judges on the Supreme Court and instead pack it with linguists. Scalia is correct that words do matter and that their usage and meaning can change, and that is precisely why it remains impossible to confidently claim to know exactly what was meant by those who wrote the Constitution. The good news for Scalia is that is why he has a job. After all, if it was obvious was the Constitution says and means, there would be no need for judges to carefully consider it.