January 28, 1998


The Honorable Justice Antonin Scalia
The Supreme Court of The United States
Washington, D.C.

Dear Justice Scalia:

Thank you again for visiting our campus, for honoring my backhanded
compliment with your wit, and especially for correcting my vulgar misuse
of "testament" (a "testimonial to the *openness* of my mind!").

My mistake of course was to forget that the meanings of words drift from
their roots.  For I should not have relied on the original root of the
word!  As you know, the root, *testis*, in Latin, from which we have
*testimonium*, is also the origin of *testor*, from which we have the
perfection of testimony, *testamentum*.  Poor me.  Should I have acknowledged
that language is an evolving, living practice?

Well, you see the ruse here: my paltry defense, a pernicious trap for the
originalist.

Of course, the Old Testament was in Hebrew.  Apparently in translating the
Hebrew *briss* to the Greek *diatheke* then to the Latin *testamentum*,
connotations of *testament* were gained and lost.  There is a famous joke
involving the deliberate misuse of the Latin *testamentum* for *testis* (the
other *testis*), ...  the root itself having a famous legal origin (so how
were women supposed to testify?).  It puts a new twist on original meaning.
I am sure you also know the details of *briss*, Abraham's covenant with God,
which makes the whole linguistic transformation seem a bloody confused
mess. 

More seriously, I wonder whether it was wise to mention *stare decisis*
(would a good originalist say *star-ay day-kee-sus*?).  The interpretation
of precedent is a source of semantic drift (even if the interpretation of
statute is held fixed), and here there is no legislative remedy.  "If they
want the meanings of open-textured statutory terms to drift through
precedent, by God, they should pass a law saying so!" 

We know that there is interpretation and there is over-interpretation, and
the issue is where to draw the line.  I can agree that when the courts are
politicized, perhaps that's too far.  After all, I decided not to
spray-paint Stanford because I was told that you are brilliant, and that's
as good a reason to confirm a Supreme Court Justice as any.***  As for your
other arguments, I recognize them as mere moonshining of the public (Did
you really expect to succeed with "the only thing the interpretationists
can agree on is that they are not originalists!" while conceding that the
originalists can't agree on how originalist to be?  Do you really think
there must be agreement on the meaning of the Constitution, when it would
suffice that there is agreement on how to resolve disagreements on the
meaning of the Constitution?**).


I close before you compliment me not only for having an *open* mind but also
a *fecund* prose.


With Genuine Best Wishes and Justified Fear of Your Sharp Wit,




Ronald P. Loui
Associate Professor of Computer Science
Affiliate Associate Professor in the Legal Studies Program



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** Scalia's response:  Yes and Yes.

*** I would now say that brilliance is not as important as good judgement.