Confirmation hearings for Neil Gorsuch, Trump’s SCOTUS nominee, begin on March 20. There will be lots of discussion about how he would decide particular cases. And the public discourse about this will reference a lot of obscure notions about Constitutional interpretation—originalism, original intent, strict construction. And these notions are often associated, quite incorrectly, with Justice Antonin Scalia. Indeed, it is Scalia who points out what is wrong with the way many conservatives understand Constitutional interpretation.
Justice Scalia calls his own theory of Constitutional interpretation “textualism,” which he characterizes as follows: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably to contain all that it fairly means.” And Scalia is quite adamant that “all that it fairly means” refers to the original meaning of the text, and not at all to the intent of the legislators.*
There are numerous reasons for rejecting original intent or strict construction. First, it is entirely unclear that legislators, whether the founders devising the Constitution or other legislators enacting more mundane laws, actually have any collective intentions. (What, for example, might a merchant from New York and a plantation owner from North Carolina have jointly intended to accomplish by the various clauses of the Constitution?) Second, it is not entirely clear how we would determine what legislators’ intentions were.
And strict construction is often just an excuse to claim that everything should remain just as it was when the Constitution was adopted, however much the world may have changed: anything which was illegal then must be illegal now; only practices protected then are to be protected now. But notice how odd this claim is: the framers, after struggling for months to articulate a set of moral guidelines for the governance of the country, emerge from their convention, look about, and discover that the institutions and practices of the country are already in perfect accord with these principles. No adjustment is needed.
On the other hand, we know exactly what is the text of laws that are enacted by legislators, and we have the intellectual tools and resources to determine what these words meant to those who embraced them. There is no better example of how to do this than Scalia’s own majority opinion in DC v. Heller. Scalia draws on linguistic, historical, and philosophical sources to explicate the meaning of the 2nd Amendment in a way that allows it to be applied to a specific contemporary case.
But what does it really matter, whether or not we are faithful to the original meaning of the text? Why should we be bound by what a bunch of dead white guys said a long time ago? Isn’t the real strength of the Constitution that it is a “living” document that “evolves” to meet our changing needs? The answer to these and like questions is to be found in the concept of the “rule of law.”
Consider the definition of “rule of law” proposed by the World Justice Project of the American Bar Association:
1. A system of self-government in which all persons, including the government, are accountable under the law
2. A system based on fair, publicized, broadly understood and stable laws
3. A fair, robust, and accessible legal process in which rights and responsibilities
based in law are evenly enforced
4. Diverse, competent, and independent lawyers and judges
This definition makes it clear enough why we should value the rule of law--it is an ideal that stands as a bulwark against arbitrary and capricious exercises of power by those who govern us. And each of its four elements could readily be invoked as a criticism of contemporary US political culture. Our police, prosecutors, elected officials, and so on aren’t accountable for much these days. Our laws are often quite unfair, impenetrably obscure, and rendered unstable by the perverse interpretations adopted by those who administer them. Accessibility depends greatly on financial resources. The independence of the judiciary is under attack at both the federal and state levels. Our Constitution, any well-ordered constitution, can play an important role in resisting these corruptions of the rule of law. But this only works if it is understood to have a determinate meaning, a meaning that must be respected by those who seek a constitutional imprimatur for their policies and practices.
Further, textualism does not freeze our laws and rights in the past. It is the business of courts to apply the Constitution to contemporary issues; when the world changes, so will the mode of application. Capital punishment provides a good example of this. The 8th Amendment prohibits cruel and unusual punishments. Justice Scalia, ignoring his own principles, argued that the fact that capital punishment was common at the time of the adoption of this Amendment means that it cannot be considered cruel and unusual. A consistent textualist would point out that our understanding of human psychology has improved our understanding of cruelty, and that the practice of capital punishment is becoming very unusual amongst modern societies. The meaning of the Constitution hasn’t changed, but the world has. And. thus, so must our application of it.
But even this doesn’t fully capture the complexity of Constitutional interpretation. Constitution-making is a moral enterprise; many of the clauses of the Constitution invoke very abstract moral principles as the ground of our system of governance. The meaning of such concepts as “due process,” or “equal protection,” or “free exercise” cannot simply be read out of some historical dictionary; to discern the meanings of such terms, we must undertake a process of moral inquiry. An understanding of the history of philosophy can give us a range of plausible interpretations–and only a range because the framers had no collective understanding of these principles. But we, here and now, must defend one or another of these interpretations as the best understanding of the principle at issue.
To put the point a bit differently: moral concepts like those invoked in the Constitution are intrinsically contestable; we today do not agree on their meaning, and neither did the framers. That means that our best understanding of them might well differ from the understanding(s) that the framers had; indeed, our understanding might be better. This possibility would certainly not come as a surprise to many of the framers. Insofar as they were Enlightenment thinkers, they embraced notions of progress, including moral progress. By invoking contestable moral concepts, the framers left us no option but to do our best to determine just what these concepts mean. The views of the framers can certainly guide our efforts. And, as part of the ongoing moral discourse that give moral concepts their meaning, they can set boundaries. But the discourse is ongoing.
Don’t be misled. What we really need to know about candidates for judicial appointment is not how they would decide a particular case, but what principles would guide their reasoning. And when candidates or their defenders start talking about strict construction or original intent, they simply reveal that they don’t understand the Constitution.**
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*Justice Scalia develops his theory of interpretation in A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ: Princeton Univ. Press, 1997). All references are to this volume.
As a lawyer and an historian, I have two problems with strict textualism. The first his methodological: A startlingly few legal practitioners have the slightest idea how to do genuine historical inquiry, which means that such basic notions as the fact that words shift in their primary meanings are utterly alien to them. (I don't venture a single assessment of, say, 1920s politics in Germany without a 1920s dictionary to hand. You'd be surprised about how far big words like "nation" and small words like "vote" have changed in meaning in the past century.) Second, while precedent is key in a common-law system (or a more or less common-law system), the old days are not reified as controlling. So the fact that Thomas Jefferson could never have envisioned the Internet doesn't mean that the First Amendment doesn't apply. In a common-law system, in the Anglo-American tradition, the underlying assumption is that the specifics of the law will grow and change as society develops. The larger ethical points are timeless: We prize free speech. What that priority means to each generation is a matter worthy of discussion.
ReplyDeleteAs a half point in addition to these two, neither Scalia nor Rehnquist (the other self-anointned "originalist" in the group) were especially consistent in their applications of the black letter of the 18th-century law. So I'm not real convinced.
I agree with all your points. And about the first, I would say that it makes clear why courts that address constitutional issues should not be composed entirely of lawyers.
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