Scalia and Originalism

For those that did not make the lecture, you missed a great chance to hear from a rare source, a Supreme Court Justice.

Here is the debate:

The "original form of originalism" was known as intentionalism, or "Original intent", and entailed applying laws based on the subjective intention of its authors. For instance, the authors of the U.S. Constitution would be the group of "Founding Fathers" that drafted it. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, for clues as to their intent.

There are two kinds of "intent analysis", reflecting two meanings of the word "intent". The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, we can discern that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle[11]

Arguments For:
A constitution is approved by the authority of the people; originalism is required to maintain their sovereignty.

If a constitution no longer meets the exigencies of a society's "evolving standard of decency", and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The "Living Constitution" approach would thus only be valuable in the absence of an amendment process.

Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the "opinion of this Court [rest] so obviously upon nothing but the personal views of its members."[23] Scalia has averred that "there is no other" criteria to constrain judicial interpretation.[24]

Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.

If a constitution as interpreted can truly be changed at the decree of a judge, then "[t]he Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," said Thomas Jefferson. Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.

If a constitution is to be interpreted in light of "the evolving standards of decency," why, in most democratic countries, should the highest authority of judicial branch, e.g. the Supreme Court in U.S., be the ones to have the final say over its interpretation? Is not the legislative branch which is elected, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgements? If originalism is wrong, then Marbury v. Madison — which holding underpins judicial review of constitutionality, that is, the meaning of the constitution — was wrongly decided, and two centuries of jurisprudence relying on it is thereby on shaky ground.

Sometimes the Ninth Amendment to the United States Constitution is cited as an example by originalism critics to attack Originalism. Self-described originalists have been at least as wiling as judges of other schools to give the Ninth Amendment no substantive meaning or to treat it as surplusage duplicative of the Tenth Amendment. Bork described it as a "Rorshach blot" and claimed that the courts had no power to identify or protect the rights supposedly protected by it. Scalia held similarly: [T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel V Granville 530 US 57 (2000) (Scalia, J. Dissenting). Scalia's interpretation renders the Ninth Amendment entirely unenforcable and moot, which is clearly contrary to its original intent. However, this is a criticism of specific originalists -- and a criticism that they are insufficiently originalist — not a criticism of originalism. The theory of originalism as a whole is entirely compatible with the Ninth Amendment. Alternative theories of originalism such as Randy Barnett's[2] give the Ninth Amendment more practical effect than many other schools of legal thought do.

Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is their any requirement that they have to. There is room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Usually, that is easy to discern and simple to apply. Sometimes there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment of the U.S. constitution guarantee of “the freedom of speech” apply to new technologies that did not exist when the guarantee was codified - to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires, and that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them.[25]

If the people come to believe that the constitution is not a text like other texts; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society,” they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they elect to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the constitution ought to be. If the courts are free to write the constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This suggests the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.[25]

Arguments Against:
Originalism leads to unacceptable results. For example, interpreting the 14th Amendment only to protect liberty recognized at the time it was ratified provides no protection to groups who were discriminated against at that time, such as women and homosexuals. With originalism, the courts are extremely limited in their power to protect against discrimination.

Moreover, if one is then to look at the interpretation--or, 'meaning'--which inheres at the particular time period, the question becomes: why is that reading the essential one?. Or, restated, an essential reading, then, is owing to whom? Is it owing, then, to the meaning derived by the average person at that time? The collective intent of the voters who passed it? Or is it possible that they indeed entrusted the framers with the authority to draft the constitution, i.e., that the intent of the drafters should remain relevant? Originalism faces hermeneutic difficulties in understanding the intentions of the Founding Fathers, who lived 200 years ago (original intent), or the context of the time in which they lived (original meaning). Justice Scalia accepts this problem: "It's not always easy to figure out what the provision meant when it was adopted...I do not say [originalism] is perfect. I just say it's better than anything else." (Source)

An alternative form of the above argument is that legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original "meaning" of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement.

It could be argued — as, for example, Justice Breyer has — that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process.

It is further argued that the specific intent in drafting the United Stated Constitution was to create a broad and flexible document which would be interpreted in this manner. As Edmund Randolph set out at the Constitutional Convention, the goal was specifically "[t]o insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events." The basis for now scrupulously trying to recreate 18th century meaning, thus, is often called into question, when it appears that the Constitution was written specifically to avoid binding future generations in this way.

This view is also supported by the fact that a constitution itself is silent on the appropriate method of constitutional interpretation. For example, had the framers intended for the U.S. Constitution to be interpreted in a specific manner they could have indicated as much in the text of the Constitution itself. The framers themselves, most of whom were lawyers and legal scholars, would presumably have known the confusion their lack of doing so would cause. The absence of any such guidance suggests either implicit support for contemporary interpretation, or that they could not agree on the correct method, neither of which should bind future generations.

The Ninth Amendment is the exception in that it does establish a rule of constitutional interpretation ("The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."). When interpreted using original intent or original meaning, it clearly protects rights which the founders had not thought to list explicitly -- a direct rebuke to all Textualist or Formalist legal schools including "originalism".

Originalism allows the "dead hand" of prior generations to control important contemporary issues down to an extraordinary and unnecessary level of detail. While everyone agrees that broad constitutional principles should control, if the question is whether abortion is a fundamental right, why should past centuries-old intentions be controlling? The originalist's distinction between original meaning and original intention here is also unclear, due to the difficulty of discussing "meaning" in terms of specific details that the Constitutional text does not clarify.

In writing such a broad phrase such as "cruel and unusual," it is implausible that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as "cruel and unusual," rather, is specifically not to specify which punishments are forbidden, but to create a flexible test that can be applied over future centuries. Stated alternatively, there is no reason to think the framers have a privileged position in making this determination of what is cruel and unusual; while their ban on cruel punishment is binding on us, their understanding of the scope of the concept 'cruel' need not be.

If applied scrupulously, originalism requires the country either to continually reratify the Constitution in order to retain contemporary standards for tests such as "cruel and unusual punishment" or "unreasonable searches and seizures," or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is too burdensome, while the second is already inherently implied.

Originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the "rules" of originalism are sometimes "bent") to reach desired ends, no less so than The Living Constitution. For example, Prof. Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the Originalist Justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist's concurrence in Bush v. Gore, 531 U.S. 98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528 U.S. 990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994))

Originalists often argue that where a constitution is silent, judges should not "read rights into" it. Rights implicating abortion, sex and sexual orientation equality, and capital punishment are often thus described as issues that the Constitution does not speak to, and hence should not be recognized by the judiciary. Yet, the Ninth Amendment, provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Original intent thus calls for just the opposite of what the text of the Constitution and "original intent" of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism.

So...who's right?