Check Your Texts

Figure 1. Rest in peace, Nino.

Scalia never got the chance to retire, but his legacy endures. In his book A Matter of Interpretation, Scalia does something striking: the Justice lays out his case for how our republic can best live up to its values – and then invites four prominent experts to challenge him. To anyone who has read one of Scalia’s amusing and cutting judicial opinions, this should come as no surprise: the man loved a good debate. But to anyone who has not and never will, this book offers both a clear introduction to Scalia’s philosophy – and to some of its criticisms. 

Scalia believes that every law must be interpreted based only on what the text says, not what a judge wants. You are probably shocked that this is a controversial proposition, but it is. But how do you determine what a text says?  The most important concept, alluded to in the term “originalism,” is that the text must be interpreted according to the original public meaning of the words. In a republic, power is centered in the people who delegate legislators to make laws on their behalf. Those legislators only agreed to what the words meant at the time, not to whatever those words may mean in the future – so the only power laws have is in their original meaning. So judges must write opinions armed with contemporary dictionaries, not the latest op-eds and policy briefs. Without this constraint, if laws can be interpreted by anyone to mean anything, what is the point of having laws in the first place?

Figure 2. “When I use a word, it means just what I choose it to mean. Neither more or less.” – Humpty Dumpty, the most strident advocate of Living Constitutionalism in Wonderland, and a preferred legal authority for certain Americans looking abroad for standards.

Importantly, Scalia is NOT saying laws should never change – they should! But they must be changed through the democratic process – the regularly elected legislature rather than the unaccountable judiciary. Scalia insists on judicial restraint: “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.” No, the obligation of the courts is to determine whether the law is followed, not what the law should be. “To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or too hidebound 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.” Scalia goes further in his observation that if he could change one thing about the Constitution, he would make it easier to change – so that people could litigate their ideas in elections rather than before the courts. Still, this is a relatively recent phenomenon: Scalia points out that we felt obligated to pass a constitutional amendment to give women the right to vote even though modern courts probably would have just ordered it to happen.

So you’re sold on original meaning, but why original public meaning? This is most relevant to the Constitution, which derives its authority from the consent freely given by Americans in 1787 when it was submitted to state conventions for ratification. But it also applies to modern statutes: Scalia stridently challenges the attempt to discover meaning by trying to divine what legislators intended to do, as opposed to what they actually wrote into the text and voted upon. To Scalia, this is an impossible task of soothsaying: How can one possibly know the intentions of 535 legislators and a president in crafting legislation? Is a speech – or worse, a private comment – by a single legislator perhaps listened to by no one really the indicator of anyone else’s intent – or even that legislator’s intent? Does a committee report drafted by unelected staff and never read, amended, or voted upon by Senators really reveal their intentions? Scalia maintains that the United States is “a government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us.” Furthermore, Scalia fervently believes in the separation of powers – and that the Constitution grants “all legislative powers” to the Congress as a whole, not to any committee, nor any individual legislator, and certainly not to the judiciary. The search for legislative intent, Scalia reveals, is really a “handy cover for judicial intent.” The more material that judges can draw upon to make a decision, the easier it is for them to justify a decision that comports with their policy preferences rather than a balanced, neutral perspective on what the law really means.

Figure 3. Amazingly, whenever Living Constitutionalist judges consult the spirits of past legislators about whether what they really meant to say is that judges should just do whatever they think is right, the Ouija board always says “YES.”

Hogwash, replies Lawrence Tribe, a Harvard law professor and co-founder of a liberal counterpart to the Federalist Society. Tribe alleges that it is difficult, if not impossible, to “discover” the meaning of the Constitution or any law and that judges should “replace such pretense with a forthright account” of whatever they find most plausible and best, though he says “in light of the Constitution as a whole and the history of its interpretation” – a minor concession given how far the Constitution’s original meaning has been bent and bruised. But Tribe goes further and says “There is certainly nothing in the text itself that proclaims the Constitution’s text to be the sole or ultimate point of reference.” But what then should America’s 1000+ judges (and in particular, 5+ Supreme Court Justices) review? That, Scalia responds, is the fundamental weakness of Tribe’s position: 

Perhaps the most glaring defect of Living Constitutionalism… is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful.

Tribe concedes that he has no overall perspective because he is “doubtful that any defensible set of ultimate ‘rules’ exists.” If that’s the case, why not trust the democratic process? Scalia explains that’s the point: Living Constitutionalists want to subvert the system. First, they are frustrated with the fact that the Constitution was designed to limit evolution. That’s why we wrote something down, as opposed to allowing the law to just develop on its own as it does in the United Kingdom. And it’s why we created three branches, each with unique responsibilities, inside one of which are two distinctly elected houses of Congress, all designed to achieve ambition clashing against ambition – and limit big jumps in policy. Second, they are frustrated by voters and eager to restrict democracy: courts have taken away power from voters and ordered that God cannot be invoked at public school graduations, that welfare can’t be terminated (or public employees fired) without a hearing, or, perhaps sometime soon, that the right to bear arms will be gutted. But Scalia warns:

We value the right to bear arms less than did the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may like the abridgment of property rights and like the elimination of the right to bear arms; but let us not pretend that these are not reductions of rights… As things now stand, the state and federal governments may either apply capital punishment or abolish it, permit suicide or forbid it—all as the changing times and the changing sentiments of society may demand. But when capital punishment is held to violate the Eighth Amendment, and suicide is held to be protected by the Fourteenth Amendment, all flexibility with regard to those matters will be gone.

Gordon Wood, Pulitzer Prize-winning historian of early America, agrees with Scalia’s indictment of what happens when judges make law – but insists that it’s nothing new. The patriots of 1776 were outraged at “the extraordinary degree of discretion exercised by royal judges” and “sought to severely limit this judicial discretion” in favor of legislatures producing clean and comprehensive codes that would address any situation. Thomas Jefferson demanded an end to “‘the eccentric impulses of whimsical, capricious designing man’ and to make the judge a ‘mere machine.’” But it turns out that legislatures are full of eccentric, impulsive, whimsical, capricious, designing men and they proved incapable of the task, passing a muddle of conflicting laws driven by interests both partisan and corrupt. After fighting a revolution for freedom and to limit laws, James Madison complained “there were more laws enacted in the decade following the Declaration of Independence than had been enacted in the entire previous century of colonial history.” By the time of the Constitution’s framing, “more Americans began looking to the once-feared judiciary as a principal means of restraining these wild and rampaging popular legislatures.”

Figure 4. Lifetime tenure will take on a whole new meaning when we can appoint Justice vending machines pre-programmed with the Constitution. A lot cheaper than conventional human judges, but they do require crisp bills of only those denominations that depict the Founding Fathers.

Wood notes that the judiciary has only historically recently become its own branch of government (having been in either legislative and executive before – including Tennessee’s original Constitution) and that early American judges were often not lawyers at all and “involved in politics and governing to an extent that we today find astonishing” – including simultaneously serving in executive positions like lieutenant governor, Secretary of State, or other diplomatic positions. In the 19th century, courts attempted to withdraw from the “most explosive and partisan political issues” but insisted on retaining power to define rights. Wood concludes that what Scalia indicts is not a modern phenomenon but “one deeply rooted in our history” and may only be “a change in degree, not one in kind.”  And Wood fears that Scalia’s remedy is “scarcely commensurate with the severity of the problem and may be no solution at all” – both because judges can abuse textualism but also because we must either only appoint textualists or convince judges to be textualists.

Scalia indicates that this is part of the give and take of the separation of powers, and that “there have always been, as there undoubtedly always will be, willful judges who bend the law to their wishes. But acknowledging evil is one thing, and embracing it is something else… There has been a change in kind, I think, not just in degree, when the willful judge no longer has to go about his business in the dark—when it is publicly proclaimed, and taught in the law schools, that judges ought to make the statutes and the Constitution say what they think best.” Indeed, when you go to law school, you don’t actually study the Constitution’s text, the Federalist Papers, dictionaries from 1789 – you read the opinions of judges, lots of opinions, and your professors engage you in Socratic dialogue, asking you how the judge reasoned her way to the result. Part of this is so the law student can see what happens when the Constitution meets a situation – but the bigger part is that opinions become the law by virtue of a doctrine called stare decisis, where the court is supposed to defer to what it has said in the past unless it can distinguish the current case. Scalia approvingly quotes the 19th century codifier Robert Rantoul: “The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the legislator” or, as Scalia points out, the people. But when is it okay to get rid of stare decisis in favor of the Constitution’s original meaning?

Figure 5. Thanks to judicial discretion, stare decisis, and what one Living Constitution advocate called the “non-textual amendments” to the Constitution, we get to build our case law upon Wickard v. Filburn, where the Supreme Court determined that the Constitution granting power to “regulate Commerce…among the several States” meant that Congress could fine a small farmer thousands of dollars for growing more wheat than the federal government mandated – even when he only consumed it himself, within a single state.

Mary Ann Glendon, conservative Harvard law professor and expert in continental European law where stare decisis doesn’t really exist, worries that without stare decisis, the court will be “lurching along in irrational and unpredictable fashion, like the monster in the old version of Frankenstein.” She echoes the concerns of the early Americans: if legislation is not “comprehensive, coherent, self-contained,” then you cannot expect judges to be constrained by it. Glendon doesn’t agree with particular decisions and warns that “as judicial lawmaking expands, the democratic elements in our republican experiment atrophy. American men and women not only are deprived of having a say on how we order our lives together, but we lose the skills of self-government.” But if the Justices don’t defer to previous decisions, Glendon fears, the court loses credibility and deteriorates to a legislature of majority votes. 

Here Scalia essentially retreats into his famous self-identification as a “faint-hearted originalist” and unfortunately empowers lesser originalists of even fainter heart, if they be originalists at all. But before we get to Scalia’s perspective, we might channel his colleague Clarence Thomas, who would ask: if we’re looking for predictability, why isn’t the rule that everyone just stick to the original meaning of the Constitution? If you choose to be extremely faithful to precedent, then you are obligated to respect every time the other side, in a majority vote, betrays the original meaning (and, incidentally, often stare decisis itself). What is this extreme fidelity but a slow bleed to pirates who don’t respect the system at all but are happy to take advantage of you?

Figure 6. Imagine a family of three – mom, dad, and son –  that has a tradition of making a spring road trip from Nashville, Tennessee to Hilton Head, South Carolina – a family beach destination. Dad takes the wheel for the first leg and drives southeast from Nashville to Atlanta, Georgia before handing it off to his son. The son, however, really wants to check out the casinos in Biloxi, Mississippi, so he unilaterally drives west to Montgomery, Alabama. Now mom takes the wheel. Does she honor the direction of the car and proceed to Biloxi? Does she try to slightly correct and split the difference, perhaps winding up in Panama City Beach, the “spring break capital of the world”? Or does she turn the car around and head to the original destination of Hilton Head?

Tribe reports that,

“During his confirmation hearings, Justice Scalia revealed that his decision whether to overrule precedent he viewed as wrong would be based in part on how woven the ‘mistake’ was into the fabric of the law. A key factor in making this determination would be how long the precedent has existed. For example, he noted that almost no revelation could induce him to overrule Marbury v. Madison, but he would be more willing to overrule a less established case, such as Roe v. Wade” 

This is a pretty sensible attempt by Scalia to reconcile his philosophy with the operation of the court – but Tribe understandably attacks him for an ambiguous set of rules for when to overturn precedent, totally untied to anything actually present in the text of the Constitution which is supposed to be Scalia’s lodestar. Scalia accepts the critique, saying, regarding the First Amendment for example, “the Court has developed long-standing and well-accepted principles (not out of accord with the general practices of our people, whether or not they were constitutionally required as an original matter) that are effectively irreversible” and admits that choosing when to respect stare decisis leaves plenty of opportunity for judicial discretion. Scalia says following originalism totally would be “so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance.” Ultimately, Scalia admits “stare decisis is not part of [his] originalist philosophy; it is a pragmatic exception to it.” To which Yale law professor Akhil Amar responds, “If pragmatism ultimately determines when we do originalism, this is in the end pragmatism not originalism.”

Scalia’s final challenger is Ronald Dworkin, the second-most cited American legal scholar of the 20th century. Dworkin accepts Scalia’s plea that we look to the text of the Constitution – but suggests that the Founders gave us abstract principles to aspire to that were specifically intended to be redefined with each new generation as opposed to be frozen at the time of enactment. It is through this reading that the historian Wood fears the abuse of originalism or that Obama’s Supreme Court nominee Elena Kagan could claim “We are all originalists now.” When the Founders’ forbade “cruel and unusual punishment,” Dworkin asks, did they not mean for the definition to shift? When the post-Civil War Congress insisted that citizens’ “privileges or immunities” could not be abridged, Dworkin queries, were those supposed only to be as then-imagined? Tribe piles on: why would the Founders only codify those limited liberties enjoyed by the British, where it was a crime to imagine the King’s death? Dworkin notes that the limits of the First Amendment were vigorously debated by the Founding Fathers shortly after its passage – so how can we know what it protected then? Tribe goes further: is there not a subtext – a penumbra, if you will – in the Constitution that says “the right not to have the government put its regiments in one’s home might make little sense without some presupposed right not to have the government regiment every detail of what one does in one’s home.”

Figure 7. It will be easier to enforce the Court’s finding that the 8 hour workday is cruel and unusual than its determination that sunshine is a protected Constitutional privilege and cancer immunity must be enjoyed by all Americans. 

Scalia powerfully responds that abstraction is not aspiration:

“To guarantee that the freedom of speech will be no less than it is today is to guarantee something permanent; to guarantee that it will be no less than the aspirations of the future is to guarantee nothing in particular at all…. It makes a lot of sense to guarantee to a society that ‘the freedom of speech you now enjoy (whatever that consists of) will never be diminished by the federal government’; it makes very little sense to guarantee that ‘the federal government will respect the moral principle of freedom of speech, which may entitle you to more, or less, freedom of speech than you now legally enjoy.’”

Scalia returns to his core principles: where do you stop the madness? What other hidden, unstated rights exist in the Constitution heretofore undiscovered but now convenient? If you can’t rely on the original public meaning of what these things meant, then where do you draw the line? More importantly: how do you draw the line? And why is it that certain areas of the Constitution get this expansive treatment – cruel and unusual can mean only cruel, but not unusual, in the guesstimation of a judge that only ever evolves in one direction  – but others, like the right to bear arms is “limited to musketry in the National Guard.”

Figure 8. Not very well known, but if you put on night vision goggles and take a magnifying glass and look closely between the Third and Fourth Amendments of the original document the Constitution is written on, you find nothing.

If the Constitution is aspirational, “Judges are not… naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite.” Dworkin et al simply want a philosophy of “if it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these new rights in, if all else fails, under the Due Process Clause (which…  is textually incapable of containing them” because “it guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require — notably, a validly enacted law and a fair trial.”) Scalia concludes: “There is no such philosophizing in our Constitution, which, unlike the Declaration of Independence and the Declaration of the Rights of Man, is a practical and pragmatic charter of government.”

Ultimately, this is a terrific book, with each challenge elucidating more of Scalia’s view. But the one challenge that is missing, already implied, is from a dedicated textualist unconcerned with stare decisis. When Scalia was challenged about his inconsistencies or asked about this alternative view, he would reply that he was “an originalist, not a nut.” But even if his explanations seem reasonable, did he go far enough in living out his philosophy? Scalia says that “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” – but is that enough practical guidance for judges to come to the same conclusion? We may like how he winds up on certain issues (though he often said he ruled against his own policy interests when the Constitution required), but when he says –  “In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole. That is not strict construction, but it is reasonable construction” – does “synecdoche” seem a little too close to “penumbra” to to you? While Scalia lambasts anyone who brings in legislative intent, Scalia disciple Steven Calabresi says, 

“In constitutional cases, Justice Scalia gave weight to “original expected applications,” which he never did in deciding statutory cases. The reason for this difference is that the people’s representatives can always repeal or amend a misinterpreted statute, but they cannot do so with an erroneous opinion on a question of constitutional law. As a result, and believing that the Constitution gave all three branches coequal power to enforce the Constitution, Justice Scalia generally decided constitutional cases in a way that presumed the political branches had acted constitutionally.”

Figure 9. The Constitution has a series of age requirements – Congressmen must be 25, Senators 30, Presidents 35. But when we colonize Mars, which has a 687 Earth-day year, will Americans of that distant colony be required to be 50% older?

Regardless of how true Scalia was to originalism, he deserves immense credit for bringing it to the forefront- and allowing judges to credibly pursue his ideas further than he did. Scalia is the giant of conservative judicial philosophy – and one of the most significant conservatives of any field in modern American history.

Figure 10. Click here to buy A Matter of Interpretation (8/10), an excellent introduction to Scalia’s philosophy and its critics. You can also get a good dosage of originalist interpretation itself, such as this look at the Second Amendment:

[The alternative] reading of the text has several flaws: It assumes that “Militia” refers to “a select group of citizen-soldiers,” … rather than, as the Virginia Bill of Rights of June 1776 defined it, “the body of the people, trained to arms,” … (This was also the conception of “militia” entertained by James Madison, who, in arguing that it would provide a ready defense of liberty against the standing army that the proposed Constitution allowed, described the militia as “amounting to near half a million of citizens with arms in their hands.” The Federalist No. 46… The latter meaning makes the prologue of the Second Amendment commensurate with the categorical guarantee that follows (“the right of the people to keep and bear Arms, shall not be infringed”); the former produces a guarantee that goes far beyond its stated purpose—rather like saying “police officers being necessary to law and order, the right of the people to carry handguns shall not be infringed.” It would also be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated “Militia.”

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Figure 11. One final comment on the meaning of words. You’re of course familiar with Santa’s search for who is naughty or nice. Well, the original meaning of “naughty” was “needy,” which, when you think about it, unfortunately better reflects Santa’s gift-giving practices.