Here in a nutshell is why Scalia’s originalist theory of constitutional interpretation doesn’t make sense and can’t be consistently followed by him or anyone else. Scalia says we should be guided by the “meaning of the words” of the Constitution not by the intent of the Framers in achieving certain goals in using those words (which is why he was disdainful of Courts examining legislative history.)
1. But the most important word such as “freedom of speech” and “due process of law” are abstract concepts only given meaning within a large theoretical understanding of politics, our rights, etc.
2. There has never been any time in our history in which there was only one political theory that everyone accepted. As a result, the meaning of these abstract words have always been contested.
3. The Framers were well aware of this. It they wanted to avoid, rather than encourage, Courts to explore and debate, in the process of adjudicating particular cases what these words mean, they would have avoided such abstract terms altogether.
4. So originalism is neither possible, nor the theory of constitutional interpretation that is encouraged by the words found in the Constitution.