Constitutional Interpretation: Originalism & Textualism (Scalia) Part 2

Part 2 of Notes and Thoughts on Interpreting the Constitutions by Antonin Scalia 

Key Quote:
“To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designated, or could be designated, to serve; or too hide-bound to realize that new times require new laws.  One need only hold the belief that judges have no authority to pursue those broader purposes or write those new laws.”

Read Part 1 for Scalia’s criticisms of intentionalism and constructivism.

The main issues for Scalia are rule of law and judicial restraint.  In his conception of the law he values stability and predicability above other possible values.  Also, when judges extend application of laws beyond their original textual meaning they are undermining the democratic process.  If a law does not adequately cover some new technology or social circumstance, modifying the law is not the role of the judiciary; that is the role of the elected legislature.  If the judiciary engages in law modification and unreasonable extension, they enter the political sphere.  If they enter the political sphere, the judicial appointment process will become politicized.  (Gotta admit, he’s got a point there…)

Textual Originalism

General Definition: the text should be interpreted in line with its original meaning.  Basically, we try to figure out what the words and phrases meant at the time they were written, not what the law’s intended consequences were.

So, how should we interpret the meaning of a statute?  “It should be construed reasonably, to contain all that it fairly means.”

For example, Scalia disagrees with a decision his court made regarding a drug/gun law.  The law is that there is an increased penalty if “during and in relation to a drug trafficking crime” a defendant “uses…a firearm”.   In the case in question the defendant brought an unloaded gun to a drug transaction but it was to trade the gun in exchange for the drugs.  Scalia claims that any reasonable interpretation of the meaning of the law should result in an acquittal.  His reasoning is that the reasonable textual meaning of “uses a firearm” is as a weapon, i.e., what they are usually used for,  not as an item with which to barter.

He remarks “when you ask someone ‘do you use a cane?’ you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway”.

Textualism and Morality

To give his view on this matter he discusses how he thinks we ought to interpret the Due Process Clauses (Fifth and Fourteenth).  He says these should only be interpreted within the limited range of meaning that the words in the text have.  These clauses say nothing of whether certain punishments (he’s referring to capital punishments) are immoral or not; it says only that liberties, property, and life cannot be removed by the state without due process.

If the legislature (on a federal level) decides to abolish capital punishment and amend the Constitution or if each state legislature decides to abolish it, that’s up to them, not the judiciary.  That is a political and democratic decision, and the judiciary should restrict itself to interpreting statutes within the context of original textual meaning.

In response the the charge that textualism is formalistic he replies, “of course it is!”  That’s what the rule of law is for Scalia.  You look at the meaning of the text to determine whether a law applies or not.  “It is what makes a government a government of laws and not of men”.  End of story.

Interpreting Constitutional Texts

The distinctive problem of Constitutional interpretation is not that “special principles of interpretation apply, the usual principles are being applied to an unusual text”.   Basically, the principles in the Constitution are vague.  It would have been impossible for the framers to have written out every possible situation and explained how the principles applied to that situation.  Furthermore, such a complex code “could scarcely be understood by the public”.  For that reason they are general principles and from them we deduce particular applications.

From these facts he suggests that, when interpreting the constitution words and phrases should be given and expansive rather than narrow interpretation–“though not an interpretation that the language will not bear”  (subjective qualification! aruuuga! aruuuga!)

For example, although the First Amendment only explicitly mentions speech and press, we include things like handwritten letters (and now email).

The Real Issue: Original Meaning vs Current Meaning
So, the real issue in Constitutional interpretation is not between Framer’s intentions and objective textual meaning but between original meaning and current meaning.

Scalia identifies those in the “current meaning” school as synonymous with the “Living Constitution” movement: The Constitution is a body of law that grows and changes from age to age, in order to meet the needs of a changing society.  “And it is the judges who determine those needs and ‘find’ that changing law”.

Scalia laments that the study of Constitutional law uses as its starting point analysis Supreme Court rulings instead of the text as it was originally understood.  The logic being that subsequent rulings will depend not on original textual meaning but on contemporary interpretations “with no regard for how far that logic, thus extended, has distanced us from the original text and understanding”.

Worse yet, is that if the previous interpretations don’t yield the view that is desirable to the current Court they will discount some of the previous rulings and appeal only to the ones that support their current view.   If no previous rulings support their view, they will overturn the previous rulings in order to get the desired result.

For Scalia, it seems that whatever the prevailing Court thinks ought to be a Constitutional right is a Constitutional right.  But clearly, we must distinguish between what is actually in the text and what we’d like for there to be in the text.

The courts rulings (in the case of the 8th, i.e. cruel and unusual punishment) ought not to “reflect the evolving standards of decency that mark the progress of a maturing society”.  As much as the Court might not like the original meaning, it is not the job of the Court to substitute their own.  That’s the job of the democratically elected legislature.

Again we see Scalia’s worry about stability, predictability, and impartiality of the law.  This type of interpretation also speaks to his concern about the judicial selection process becoming politicized and the judiciary usurping power from the democratic institutions of government.

Flexibility and Liberality of the Living Constitution 
This is the part where (if it weren’t apparent already) we really get to see Scalia’s political ideology.  The standard argument for a living Constitution approach is (which Scalia opposes):

“Such an evolutionary approach is necessary in order to provide the flexibility that a changing society requires; the Constitution would have snapped if it had not been permitted to bend and grow.”

One of the problems he has with this view is that all the “growing” has been in the direction of putting restrictions on democratic government.  In other words, it seems like he’s against rulings that prevent diversity in policies among local state government.  Here’s the list of (some) things that restrict democratic gov’t that he’s against: (i.e., no longer permitted for local or federal gov’t to do)

  • admitting in a state criminal trial evidence of guilt that was obtained by an unlawful search
  • permitting invocation of God at public-school graduations
  • terminating welfare payments as soon as evidence of fraud is received, subject to restoration after hearing if evidence is satisfactorily refuted
  • imposing property requirements as a qualification for voting
  • prohibiting anonymous campaign literature
  • prohibiting pornography

Since all of these interpretations yielded restrictions on local state governments to legislate on these matters, they are anti-democratic.

Dworkin, whom I will discuss in my next post, (maybe?) has an interesting response to this.  In every case, these interpretations increased the individual protections and rights of minority groups with often little access to the political process.  An important balancing act in a democracy is the protection of minority groups’ rights from the policies of the political majority.  So, while Scalia opposes restrictions on the ability of political majorities to enact policies in conformity with local values and customs, Dworkin is concerned with protecting minority rights from the political majority.

Both are important components of democracy.  As we can there there is a question about the role of the law:  One might ask, given that both are important, should the law occupy itself with preserving and ensuring the dominance of majoritarian policies or protecting minority rights from the majority?  Ok, I’ll admit, I might have a bias…

So, in Scalia’s view, while the Living document account purports to bring about flexibility, it in fact does the opposite.  It restricts what local governments can do, thus, the Constitution will “not seek to facilitate social change but prevent it.”

Lack of a Guiding Principle for Evolution
Scalia gives a second argument agains the Living Constitution approach: (a) an evolving document runs counter to the notion that the purpose of the document is anti-evolutionary (b) there is no principle that’s guiding the evolution of the document, and probably there could not be any agreement on such a principle.

What should judges consult to figure when and in what direction evolution should occur?  Is it majority will?  Editorial columns?  Opinion polls?  The philosophy of Locke?  Hume?  Rawls? Mill?  Palmer?

As soon we give up on the permanence of the Constitution, er’body gong have a different opinion about which direction interpretation should go.

This is not to suggest that textual originalists will always agree either.  There is room for disagreement on this matter.  Sometimes there will be interpretive questions about how the text applies to new technologies.  But “at least the originalist knows what he is looking for:  the original meaning of the text”.  The difficulties of textual analysis are small compared to those of direction of evolution.

Case:  Death Penalty
Some of the Justices don’t think the death penalty constitutional even though it is explicitly mentioned in the text.  Their grounds is that it constitutes “cruel and unusual punishment”.  But the fifth and fourteenth amendments only guarantee due process, it does not say that the death penalty violates the cruel and unusual punishment clause.

On what grounds have these Justices constructed their view?  How was the death penalty constitutional before, but now it isn’t?  And how do magnets work?  Dworkin has answers, but that’s for a later post.  It’s past 4am and I need to finish this up.

Closing Remarks
Scalia says that it doesn’t seem to matter the principle upon which the Constitution evolves because “an evolving constitution will evolve the way the majority wishes”.  I’m not sure I agree about that.  Call me cynical, but I think it more likely that it will evolve in the direction of the group with the most political power, which in US politics, isn’t necessarily the majority.  But suppose he’s right and it does evolve in the direction reflective of the majority view.  How is that undemocratic?  Isn’t that one of his concerns?  Should interpretation not in part reflect the majority?

There seems to be a contradiction in his view.  Just a few pages ago he was all “boohoo! the Court is ruling in favour of protecting minorities and not letting the majority do what they want.  And that makes me saaaaaaaad!”  So, do you want policy to reflect the majority or not?

In fairness, as I have mentioned, he does have a legitimate concern here.  If the interpretation can evolve, then the judiciary becomes politicized because people will want to make sure the judges who get selected reflect their principles of interpretation.

This fear is legit.  But not too legit to quit thinking about possible principles by which we could interpret the Constitution.  He has a reply to this too.  If a portion of the Constitution doesn’t fit at all with our modern world of flying cars and robots we can change it, but through the appropriate institutions–the legislature.  There’s historical precedent for this, like the extension of voting rights to women (19th Amendent).  His theory of adjudication is that the Court is just there to interpret.

“If the courts are free the write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that.  This, of course, is the end of the Bill of Rights whose meaning will be committed to the very body it was means to protect against; the majority.”

Uh, dude.  I thought you were against restrictions on what the majority can do?

A last major theme that I will mention (more in the Dworkin post) is Scalia’s theory of adjudication.  In his view, the judge may not bring in moral principles when making his judgment.  There isn’t a total ban on normativity, he does argue for “reasonable interpretation”.   Anyway, Dworkin agrees that we should be textualist and originalist but that the principles invoked in the amendments are meant to be interpreted in line with contemporary morality rather than 18th Century morality.  On Dworkin’s model of adjudication, bringing in contemporary moral considerations is legitimate for a judge to do.

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