has anyone on the board heard Tara Smith's recent speech on this topic?
I would love to hear a summary.
Yes, we did (a friend and I, back in January, 4 hour drive one way!). The differences between her view and Scalia's are controversial. I don't have my notes with me right now, but I'll try to convey the basic gist, and please remember that unless mentioned otherwise, none of this are her words but only my understanding of them (same goes for Scalia's words).
So, Tara Smith's argument, in a nutshell, was that all words refer to concepts, and concepts subsume an infinite amount of concretes, so therefore, at the same time when any words the Founding Fathers wrote in the Constitution should
be read literally, they should not
be held to be limited to the concretes the Founders themselves had in mind. Although Scalia also allows that, for example, new ways of communication (e.g. the Internet) are still covered by the First Amendment, he does not think this principle extends to everything, e.g. abortion, ideas which the Founders themselves actually opposed.
The reason why the case of the Internet and the case of abortion are different is that the Internet is a neutral case, and no basis could be determined for whether the Founders would have opposed it or not. In the case of abortion, it was illegal in the US for 200 years, from the time of the Founding, so wedo know that it was opposed by the Founding Fathers themselves, in law as much as in personal life. So Scalia's argument is, to consider the context of the words when they were written, as that context is what lends the words their meaning. By his argument, given the context in which the Constitution and the laws in the US were framed, it can't be held that that system of laws allows abortion, and the solution would not be to revise our view what the Constitution 'actually' means, but to do a plebiscite, or an Amendment. In other words, Scalia suggests to follow the very same steps that the Women's Suffrage Movement did in the 20s, who didn't hold that the Constitution included the right for women to vote, given the view towards women during the Founding, and thus simply created an Amendment to amend the situation.
Tara Smith would say that if the Founders wrote the laws according to the notion of protecting rights, which they did, then we can re-evaluate the old rule and consider all the old laws actually viewing abortion as legal, or that women did
legally have the right to vote from the writing of the Constitution (but were denied it by the interpreters of that law). Again that's only my understanding of her argument. During the presentation she mainly used the example of abortion, and didn't say anything regarding women and voting, and that part was my own extrapolation.
So the controversiality of this whole issue is that Scalia looks at the Constitution in very fixed terms, considering only the concretes that the Founders either held themselves, or would otherwise be completely neutral about, while Tara Smith looks at the Constitution as a document that we should
read literally (in agreement with Scalia) but also that we can revise our view of what it really
means, according to the changing referents under the same old concepts. In this, we can interpret the words of the Founders to sometimes mean things different, or opposite, from the the Founders actually meant by them. This approach is different from the idea of Amendments, where a particular aspect of the Constitution is viewed as fixed, is disliked, and is therefore officially changed. I asked Tara Smith after the presentation about where Amendments fit in in her view, and from memory they seem not to have been the "be all, end all" feature and ability to her (unlike clearly being so to Scalia).
Note: Scalia also appears to adhere to the notion that rights are "positive" and are granted to a person by government, but that view does not extend to the issue of originalism that we're discussing here. I just thought I'd mention this, so that his view of rights wouldn't be considered a part of his view of originalism.
"I will tell you of the most native and greatest adornment of Athens, that which comprises and contains all the rest. Some lands are adorned as the birthplace of elephant and lion species, others as the birthplace of horses and dogs, and yet others of creatures the tales of which frighten children. But its land is adorned by the fairest thing on earth, not to be mentioned like some winged ants of India. For it was the first to bear Man."
-Aelius Aristides, 2nd c. AD