Notes and Thoughts on A Response to Scalia by Dworkin
Note, some of the content in the article–as you might expect–refers back to the Scalia posts.
Dworkin agrees with Scalia that the Constitution should be interpreted according to original textual meaning but distinguishes two approaches. The first is semantic originalism: the idea that clauses ought to be interpreted according to the meaning of the word. So, in the cruel and unusual punishment clause, we understand the meaning of those terms but we also understand that those terms are normative. However, we should not expect that what the Framers meant by those words was “whatever reflects the normative values of this time and place in history”. The assumption is that the Framers were wise enough to know that the normative values attached to normative terms are not static.
The second is expectation originalism which is that the clauses should be understood relative to the consequences the Framers would have expected their words to have. Dworkin paints Scalia to be an expectation originalist and make the argument that a true textual originalist will be a semantic originalist.
Scalia Contradicts Himself
Recall that Scalia begins his article by making a distinction between intention and law. The law should always supersede intention, because the intention of the law-maker is something we can only speculate about. In Holy Trinity v. US and A he concedes that the letter of the law forbade the churches actions, but speculates that this was not the intent of the law. Nevertheless, judges should not speculate about intent, so the letter of the law should be upheld.
However, when interpreting law we must make some assumptions about someone’s intentions and Scalia seems to tacitly accept this. Indeed, he rejects his other justices’ literalist interpretation of “using a firearm” in Smith v. US and A (Smith tried to barter for drugs with an unloaded handgun. There is a greater penalty for being involved in a drug transaction while “using a firearm”). The majority, contra Scalia, ruled that Smith was “using a firearm”. Scalia dissented because clearly using a firearm to trade for drugs isn’t included in the intended meaning of the words.
Also, he agrees that, even though only freedom of press and speech are explicitly mentioned in the 1st Amendment, the meaning of freedom of speech should be extended to handwritten letters. So, clearly, even for Scalia there are some ways to interpret beyond literal textual meaning.
Scalia might reply that we needn’t be extreme literalists, and that these extensions of meaning are practical and common sense. But this response undermines his postion that textual meaning should always trump legislative intent. The examples suggest, in his interpretation of the statute, he put some kind of intent ahead of literal meaning.
So, if it was OK in the two previous examples to extend meaning beyond plain text, why does he prohibit this move in Holy Trinity v. US and A? He even acknowledges that exempting priests, artists, and lecturers was probably the intent of the lawmakers. Whatever distinction he makes, it cannot rely on “practicality” because that is itself a subjective and normative term. For his principle of adjudication to be defensible, he must make a distinction between kinds of intention in the law.
Two Types of ‘Terpretation
When a law is being constructed there is an important distinction between what lawmakers intend to say with their chosen words and what they hope will be the consequences of the law. Dworkin gives the following illustrative example:
Suppose a boss tells his manager (without winking) to hire the most qualified applicant for a new job. The boss might think it obvious that his own son, who is an applicant, is the most qualified; indeed he might not have given the instruction unless he was confident that the manager would think so too. Nevertheless, what the boss said, and intended to say, was that the most qualified applicant should be hired. And if the manager thought some other applicant better qualified, but hired the boss’s son to save his own job, he would not be following the standard the boss intended to lay down.
Back to Scalia. Now back to me. Now back to Scalia. In the cases where Scalia deviates from literal textual meaning he applies one kind of interpretive principle: semantic intention. (If we draw an analogy with Dworkin’s example, he’s following the standard of hiring the most qualified applicant). In fact, when interpreting anyone’s words we have to pay attention to semantic intention because the same words can mean very different things depending on what the speaker/writer intends to mean. In order to understand the semantic intention of a word or clause, it is usually important to look at the semantic context.
So, bearing in mind the distinction between what legislators intended the words of a law to mean and what they intended the consequences to be, we can inquire about how to go about making legal interpretations. In the case of legal interpretation, we do not know what legislators intended by certain words unless we ask, “what is it reasonable to suppose the words intended to say?” Discerning intentions is hard enough when they are the words of just one person, the difficulties multiply when we try to interpret what an institution intends by its words. Regardless of how Dworkin and Scalia might read those intentions, it seems they both agree that there is a distinction between what words are intended to say in a statute and what the intended consequences of a law might might.
I’m having trouble with this distinction. It doesn’t seem that clear to me. I understand it intellectually but I think that there is often some important overlap. Couldn’t we say that the legislators intended the language of the law to say whatever it is that will achieve the consequences they had in mind? Why this stringent decoupling of the two? It seems to me that they are importantly–albeit imperfectly–related.
To illustrate the distinction, Dworkin busts out an example that Scalia used: In Holy Trinity v. US and A, Scalia says that in spite of the fact that the legislators probably intended for there to be an exception for artists, priests, and lectures in the immigration law, and probably would even have voted for these exceptions, it doesn’t matter. It doesn’t matter that what happened isn’t what the legislators assumed would happen. The letter of the law says no exceptions to the immigration law–i.e., the meaning of the words–and that’s how judges should interpret the law.
But not er’body agrees with this method of interpretation. Others argue that judges should consider intended consequences of legislation. And why? Because it’s more democratic. How so? Because, on this model of interpretation the law is more likely to be interpreted in a way consistent with the consequences of law that the elected legislature intended.
But, not Scalia. He wants to say, in this case, that the semantic intent trumps the consequences that were intended by the law. Recall that the objection to interpretation based on intent is that the judges are expected to be mind readers. How are they supposed to know what the lawmaker intended the law to be like or what they intended the consequences of the law to be like?
So, there seems to be a question about the place of democratic values in the law. Recall, that in Scalia’s article he makes quite a fuss about the necessity for judicial deference to the legislature in order to depoliticize the judicial selection process. On the other hand, we might say that the selection process will be political no matter what, because people also have competing interests revolving around what theory of judicial interpretation a judge has.
There is also the separate democratic consideration about rules of adjudication. Do we want interpretation to be totally devoid of what might reasonably be interpreted as the intent –either consequences or textual meaning to the exclusion of the other–of the elected legislature? These are normative issues to which there is not going to be any one right answer. Any answer will involve trade offs.
Implications of Textualism for Interpreting Abstract Clauses in the Bill of Rights
Consider Brown v. Board of Education (where by the 14th Amendment was interpreted to make illegal segregated schools): The 14th Amendment guarantees “equal protection of the laws”. When Congress voted for the this amendment, they didn’t have in mind applying it to de-segregate schools because they maintained segregated schools themselves in DC. In other words, it wasn’t one of the intended consequences of the law.
However, Dworkin points out, there is no way today we could reasonably interpret the words “equal protection of the laws” as meaning segregation is constitutional. Au contraire! The Court maintained that the semantic intentions of “equal protection of the laws” implies a general principle of political morality which, nowadays, condemns racial segregation. On that reading, a semantic originalist should agree with the anti-segregationist ruling.
Is Scalia Consistent in Applying Semantic Textualism?
Recall Scalia’s discussion of whether the 8th Amendment (cruel and unusual punishment) prohibits capital punishment. An expectation originalist (interpret according to intended consequences) would answer in the negatational. Why? because capital punishment is explicitly mentioned and was used as a means of punishment at the time of the Framers. All they said about it was that, before killing the defendant (loaded language much?) he had to have due process. Why would they say you need to have due process before executing someone if they thought execution was unconstitutional? So, clearly on an expectationist reading, capital punishment is constitutional.
Baaaaaaat! vas about a semantic originalist? He has to two choose between two approaches to interpret what the Framers intended to say in the 8th: (1) that the words “cruel and unusual” were intended to say “the list of punishments that we in the late 18th Century think to be cruel and unusual”. Or (2) that they meant to lay down an abstract principle forbidding whatever punishments are deemed to be cruel and unusual by whatever standards exist in society at the moment of interpretation.
On the first model of interpretation we would conclude that capital punishment is constitutional. But on the second, we might not–despite whatever intended consequences the Framers had in mind. So, on the 2nd model we apply contemporary normative notions to the phrase “cruel and unusual”.
Some people might oppose this because of concerns about stability and predictability of the law. But, we might counter that interpretation on the 2nd model is more democratic if we think that normative standards might not hold constant over 2 Centuries. We might want a conception of law where contemporary normative judgments are reflected.
Of course, this raises problems too because, where there is disagreement–which there inevitably will be–who’s normative values do we select? Do we simply go by the majority? What if there are significant regional differences? Do we leave it to the local governments to decide instead and have different standards across the land? These be some prollems for realz.
A Tale of Two Types of Semantic ‘terpretations
So, now lets return the the matter of Scalia’s alleged inconsistency. Regarding capital punishment, he thinks it loco that it can be considered unconstitutional. This would make sense if he were an expectation originalist. Obviously, the Framers never expected that the 8th Amendment would render unconstitutional a standard practice of their time. Now, Scalia is a textualist. He might interpret using method (1) where he thinks all moral and other normative terms are inexorably locked into 18th Century sensibilities. It’s possible. But even if this were true, do we want a theory of adjudication that locks us into ancient morality? What about 500 years from now. Should we still hold up 18th Century morality as the one time in history they just happen to get it right? That doesn’t sound too appealing. And there’s nothing in the Constitution that says we have to. The Constitution is mute on theories of interpretation, so it’s reasonable to weigh our choices.
If we interpret on the model (2) we can see how the openness of the abstract normative principles allows for some flexibility while still maintaining the semantic content of the law. It’s somewhat debatable if this would diminish the stability and flexibility of the law because presumably people have a better grasp of contemporary normative values than they do of 18th century values. Even if someone opted for (1), I think they’d have a hard time denying the plausibility of (2). Also, if they opted for (1), as time progresses it will be more and more difficult to accurately recall 18 Century values.
The Framers knew how to give concrete language when they needed it. In the 4th, 5th, 6th and 7th Amendments they use very precise terms and give specific procedures. If they had intended for the abstract terms to be anchored in 18th Century normativity, they likely would have made the clauses more specific, as they did elsewhere.
So, it seems, even the semantic textualists need to make some meta assumptions about the intentions of the Framers regarding interpretation; although, it’s not much of a leap to suppose that the Framers intentionally left some amendment clauses in abstract language, and others in specific language. If they made some specific, there’s no reason to suppose they couldn’t have made them all specific or all abstract. There’s also an implied meta-intentionalist theory about the normative standards to apply. Even if they did intend for us to lock judicial interpretation of laws into 18th Century norms, I think we could make more compelling arguments to reject this postion than we could to maintain it. Call me crazy. (Some people do).
Of course, Scalia might agree with our conclusion but disagree about how to get there. His conservative theory of adjudication requires deference to the legislature for any change. On his model, we’d have to get the legislature to sign off on releasing us from 18th Century morality before the judiciary could apply the new standards. However, at the time of the framing, common law was the tradition (appeal to precedents, much more deference to the judiciary) so there is an argument to be made that the Framers would have supported more, rather than less judicial power than what Scalia advocates.
The Strawman of the Living Document View
In regards to Scalia’s attacks on the Constitution-as-living-document view Dworkin suggest he is arguing against a strawman. The actual view is the second theory of semantic originalist interpretation by which abstract normative terms are interpreted in relation their contemporary values, rather than the archaic ones. So, when these cases involving these terms come up, previous judgments are reviewed, not to change what Constitution says, but to review the principle in question within the framework of contemporary values.
As Dworkin writes: “The Constitution insists that our judges do their best collectively to construct, reinspect, and revise, genration by generation, the skeleton of freedom and equality of concern that its great clauses, in their majestic abstraction, command–how ’bout them apples?” Scalia needs to address these apples, not the strawman he constructs.
So, again there is this tension in the concept of the rule of law. To what degree do judges need to defer to past decisions and to what degree can they interpret according to a contemporary understanding of the abstract principles? There’s also the problem of deciding which past decisions to consider and how much each should weigh relative to other considerations.
Historical Evidence in Favour of Semantic Intent
Further evidence against the view that we should accept the dated version of semantic interpretation arises out of the history surrounding the First Amendment. At the time of the Framers there was much more debate than now about what freedom of speech consisted in. Some thought it just meant you could publish whatever you wanted but you could be arrested for it after–that is, freedom from prior restraint. Others argued for different interpretations. No one supposed that the First Amendment “codified some current and settled understanding, and the deep division among them showed that there was no settled understanding to codify”.
If this is the case, then the evidence is quite strongly in favour of interpreting the abstract clause “freedom of speech” as being open to different normative interpretations. It hardly supports the contrary view that we should be locked into the Framers’ view, because, history tells us there was no unified view. Recall that Scalia’s account of the First Amendment (the dated version) is that it should be read as only protecting the rights it would have generally been understood to protect at the time of writing. Well, that’s just poppy-cock.
In his discussion of the 14th Amendment (“equal protection of the laws”) Scalia argues that when the clause was adopted it did not prohibit distinctions based on sex, age, and property. For that reason, it was beyond the scope of the courts to extend voting rights to women in the 1920s (which was done instead–correctly, in his view–through legislation).
It’s quite possible that at the time of framing this distinction existed. But this isn’t what the framers said; i.e., the semantic content of the words. The words are “equal protection of the laws” and when we properly understand this as an abstract principle of political morality, what that clause refers to can change as our political morality changes. The language is general and abstract. We should not read into it limitations and restrictions that are anachronistic to today’s understanding of the terms. If our intention is to be true to semantic meaning of the text, we should not stain to interpret it in such a way that seems foolish today. (Assumption: we should assume that the framers were wise enough to foresee changes in normativity and recognize that their views weren’t the last word on morality)
Besides, if we read the 14th Amendment with all those limitations, we are adopting an intentionalist reading, not one true to the semantics of text. We are deriving our understanding from what we think the framers would have thought the consequences would have been. But this is precisely the view that Scalia opposes. If he wants to be consistent, he needs to adopt the semantic originalist interpretation.
Judges need to rekanize that when they are interpreting abstract clauses that those clauses refer to moral judgments; so, judges need to exercise moral judgments in their decisions. This does not mean that their moral judgments should be to the complete exclusion of precedent or textual and/or historical integrity or concerns about morphing the Constitution.
Many conservative judges refudiate semantic originalism on the grounds that it is undemocratic: judges should not bring morality into their decisions. Scalia agree with the conclusion but for a different reason. Scalia rejectifies bringing morality into the legal sphere because it politicizes the appointment procedure of the Supreme Court. People are going to want to make sure that judges who reflect their moral views get appointed. Most likely, judges holding the majority view will get appointed to the detriment of the rights of political minorities.
Dworkin says history disagrees, and that judges whose political morality aligns most with individual rights tend to get appointed.
It appears Scalia’s ostensible central motivation is protection of individual rights. But here’s the contradiction: His most basic argument for textualism is that interpretation based on legislative intent is undemocratic. It is undemocratic because the law is being interpreted as something other than what was voted on by the elected legislature. But his argument against textualism arise out of his discomfort with majority rule.
As I said in my previous post on Scalia, this guy’s a little conflicted. But as with most of us, we are inconsistent in the individual rights we support and our ideas about the will of the majority. On what non-circular grounds can we make arguments for the particular balance of individual and collective rights we support? Ultimately, our reasoning rests on “self-evident” assumptions about what’s good and what isn’t…usually convenient to our particular circumstances, personal history, and culture.
Notes and Thoughts on A Response to Scalia by Dworkin