(I almost regret writing this post because it took a lot longer to write than I expected and I am afraid that I have ventured too deeply into unfamiliar territory. But having expended so much time and effort on this post, I must admit to being curious about what people will think of it.)
I resist the temptation to comment on Justice Scalia’s character beyond one observation: a steady stream of irate outbursts may have secured his status as a right-wing icon and burnished his reputation as a minor literary stylist, but his eruptions brought no credit to him or to the honorable Court on which he served.
But I will comment at greater length on the judicial philosophy, originalism, which he espoused so tirelessly. The first point to make, in discussing originalism, is that there are at least two concepts of originalism that have been advanced. The first and older concept is that the provisions of the US Constitution should be understood and interpreted as the framers of the Constitution intended those provisions to be understood and interpreted. The task of the judge, in interpreting the Constitution, would then be to reconstruct the collective or shared state of mind of the framers and, having ascertained that state of mind, to interpret the provisions of the Constitution in accord with that collective or shared state of mind.
A favorite originalist example is the “cruel and unusual punishment” provision of the Eighth Amendment to the Constitution. Originalists dismiss all arguments that capital punishment is cruel and unusual, because the authors of the Eighth Amendment could not have believed capital punishment to be cruel and unusual. If that’s what they believed then, why, having passed the Eighth amendment, did the first Congress proceed to impose the death penalty for treason, counterfeiting and other offenses in 1790? So it seems obvious that the authors of Eighth Amendment did not intend to ban capital punishment. If so, originalists argue, the “cruel and unusual” provision of the Eighth Amendment can provide no ground for ruling that capital punishment violates the Eighth Amendment.
There are a lot of problems with the original-intent version of originalism, the most obvious being the impossibility of attributing an unambiguous intention to the 50 or so delegates to the Constitutional Convention who signed the final document. The Constitutional text that emerged from the Convention was a compromise among many competing views and interests, and it did not necessarily conform to the intentions of any of the delegates, much less all of them. True, James Madison was the acknowledged author of the Bill of Rights, so if we are parsing the Eighth Amendment, we might, in theory, focus exclusively on what he understood the Eighth Amendment to mean. But focusing on Madison alone would be problematic, because Madison actually opposed adding a Bill of Rights to the original Constitution; Madison introduced the Bill of Rights as amendments to the Constitution in the first Congress, only because the Constitution would not have been approved without an understanding that the Bill of Rights that Madison had opposed would be adopted as amendments to the Constitution. The inherent ambiguity in the notion of intention, even in the case of a single individual acting out of mixed, if not conflicting, motives – an ambiguity compounded when action is undertaken collectively by individuals – causes the notion of original intent to dissolve into nothingness when one tries to apply it in practice.
Realizing that trying to determine the original intent of the authors of the Constitution (including the Amendments thereto) is a fool’s errand, many originalists, including Justice Scalia, tried to salvage the doctrine by shifting its focus from the inscrutable intent of the Framers to the objective meaning that a reasonable person would have attached to the provisions of the Constitution when it was ratified. Because the provisions of the Constitution are either ordinary words or legal terms, the meaning that would reasonably have been attached to those provisions can supposedly be ascertained by consulting the contemporary sources, either dictionaries or legal treatises, in which those words or terms were defined. It is this original meaning that, according to Scalia, must remain forever inviolable, because to change the meaning of provisions of the Constitution would allow unelected judges to covertly amend the Constitution, evading the amendment process spelled out in Article V of the Constitution, thereby nullifying the principle of a written constitution that constrains the authority and powers of all branches of government. Instead of being limited by the Constitution, judges not bound by the original meaning arrogate to themselves an unchecked power to impose their own values on the rest of the country.
To return to the Eighth Amendment, Scalia would say that the meaning attached to the term “cruel and unusual” when the Eighth Amendment was passed was clearly not so broad that it prohibited capital punishment. Otherwise, how could Congress, having voted to adopt the Eighth Amendment, proceed to make counterfeiting and treason and several other federal offenses capital crimes? Of course that’s a weak argument, because Congress, like any other representative assembly is under no obligation or constraint to act consistently. It’s well known that democratic decision-making need not be consistent, and just because a general principle is accepted doesn’t mean that the principle will not be violated in specific cases. A written Constitution is supposed to impose some discipline on democratic decision-making for just that reason. But there was no mechanism in place to prevent such inconsistency, judicial review of Congressional enactments not having become part of the Constitutional fabric until John Marshall’s 1803 opinion in Marbury v. Madison made judicial review, quite contrary to the intention of many of the Framers, an organic part of the American system of governance.
Indeed, in 1798, less than ten years after the Bill of Rights was adopted, Congress enacted the Alien and Sedition Acts, which, I am sure even Justice Scalia would have acknowledged, violated the First Amendment prohibition against abridging the freedom of speech and the press. To be sure, the Congress that passed the Alien and Sedition Acts was not the same Congress that passed the Bill of Rights, but one would hardly think that the original meaning of abridging freedom of speech and the press had been forgotten in the intervening decade. Nevertheless, to uphold his version of originalism, Justice Scalia would have to argue either that the original meaning of the First Amendment had been forgotten or acknowledge that one can’t simply infer from the actions of a contemporaneous or nearly contemporaneous Congress what the original meaning of the provisions of the Constitution were, because it is clearly possible that the actions of Congress could have been contrary to some supposed original meaning of the provisions of the Constitution.
Be that as it may, for purposes of the following discussion, I will stipulate that we can ascertain an objective meaning that a reasonable person would have attached to the provisions of the Constitution at the time it was ratified. What I want to examine is Scalia’s idea that it is an abuse of judicial discretion for a judge to assign a meaning to any Constitutional term or provision that is different from that original meaning. To show what is wrong with Scalia’s doctrine, I must first explain that Scalia’s doctrine is based on legal philosophy known as legal positivism. Whether Scalia realized that he was a legal positivist I don’t know, but it’s clear that Scalia was taking the view that the validity and legitimacy of a law or a legal provision or a legal decision (including a Constitutional provision or decision) derives from an authority empowered to make law, and that no one other than an authorized law-maker or sovereign is empowered to make law.
According to legal positivism, all law, including Constitutional law, is understood as an exercise of will – a command. What distinguishes a legal command from, say, a mugger’s command to a victim to turn over his wallet is that the mugger is not a sovereign. Not only does the sovereign get what he wants, the sovereign, by definition, gets it legally; we are not only forced — compelled — to obey, but, to add insult to injury, we are legally obligated to obey. And morality has nothing to do with law or legal obligation. That’s the philosophical basis of legal positivism to which Scalia, wittingly or unwittingly, subscribed.
Luckily for us, we Americans live in a country in which the people are sovereign, but the power of the people to exercise their will collectively was delimited and circumscribed by the Constitution ratified in 1788. Under positivist doctrine, the sovereign people in creating the government of the United States of America laid down a system of rules whereby the valid and authoritative expressions of the will of the people would be given the force of law and would be carried out accordingly. The rule by which the legally valid, authoritative, command of the sovereign can be distinguished from the command of a mere thug or bully is what the legal philosopher H. L. A. Hart called a rule of recognition. In the originalist view, the rule of recognition requires that any judicial judgment accord with the presumed original understanding of the provisions of the Constitution when the Constitution was ratified, thereby becoming the authoritative expression of the sovereign will of the people, unless that original understanding has subsequently been altered by way of the amendment process spelled out in Article V of the Constitution. What Scalia and other originalists are saying is that any interpretation of a provision of the Constitution that conflicts with the original meaning of that provision violates the rule of recognition and is therefore illegitimate. Hence, Scalia’s simmering anger at decisions of the court that he regarded as illegitimate departures from the original meaning of the Constitution.
But legal positivism is not the only theory of law. F. A. Hayek, who, despite his good manners, somehow became a conservative and libertarian icon a generation before Scalia, subjected legal positivism to withering criticism in volume one of Law Legislation and Liberty. But the classic critique of legal positivism was written a little over a half century ago by Ronald Dworkin, in his essay “Is Law a System of Rules?” (aka “The Model of Rules“) Dworkin’s main argument was that no system of rules can be sufficiently explicit and detailed to cover all possible fact patterns that would have to be adjudicated by a judge. Legal positivists view the exercise of discretion by judges as an exercise of personal will authorized by the Sovereign in cases in which no legal rule exactly fits the facts of a case. Dworkin argued that rather than an imposition of judicial will authorized by the sovereign, the exercise of judicial discretion is an application of the deeper principles relevant to the case, thereby allowing the judge to determine which, among the many possible rules that could be applied to the facts of the case, best fits with the totality of the circumstances, including prior judicial decisions, the judge must take into account. According to Dworkin, law and the legal system as a whole is not an expression of sovereign will, but a continuing articulation of principles in terms of which specific rules of law must be understood, interpreted, and applied.
The meaning of a legal or Constitutional provision can’t be fixed at a single moment, because, like all social institutions, meaning evolves and develops organically. Not being an expression of the sovereign will, the meaning of a legal term or provision cannot be identified by a putative rule of recognition – e.g., the original meaning doctrine — that freezes the meaning of the term at a particular moment in time. It is not true, as Scalia and originalists argue, that conceding that the meaning of Constitutional terms and provisions can change and evolve allows unelected judges to substitute their will for the sovereign will enshrined when the Constitution was ratified. When a judge acknowledges that the meaning of a term has changed, the judge does so because that new meaning has already been foreshadowed in earlier cases with which his decision in the case at hand must comport. There is always a danger that the reasoning of a judge is faulty, but faulty reasoning can beset judges claiming to apply the original meaning of a term, as Chief Justice Taney did in his infamous Dred Scot opinion in which Taney argued that the original meaning of the term “property” included property in human beings.
Here is an example of how a change in meaning may be required by a change in our understanding of a concept. It may not be the best example to shed light on the legal issues, but it is the one that occurs to me as I write this. About a hundred years ago, Bertrand Russell and Alfred North Whitehead were writing one the great philosophical works of the twentieth century, Principia Mathematica. Their objective was to prove that all of mathematics could be reduced to pure logic. It was a grand and heroic effort that they undertook, and their work will remain a milestone in history of philosophy. If Russell and Whitehead had succeeded in their effort of reducing mathematics to logic, it could properly be said that mathematics is really the same as logic, and the meaning of the word “mathematics” would be no different from the meaning of the word “logic.” But if the meaning of mathematics were indeed the same as that of logic, it would not be the result of Russell and Whitehead having willed “mathematics” and “logic” to mean the same thing, Russell and Whitehead being possessed of no sovereign power to determine the meaning of “mathematics.” Whether mathematics is really the same as logic depends on whether all of mathematics can be logically deduced from a set of axioms. No matter how much Russell and Whitehead wanted mathematics to be reducible to logic, the factual question of whether mathematics can be reduced to logic has an answer, and the answer is completely independent of what Russell and Whitehead wanted it to be.
Unfortunately for Russell and Whitehead, the Viennese mathematician Kurt Gödel came along a few years after they completed the third and final volume of their masterpiece and proved an “incompleteness theorem” showing that mathematics could not be reduced to logic – mathematics is therefore not the same as logic – because in any axiomatized system, some true propositions of arithmetic will be logically unprovable. The meaning of mathematics is therefore demonstrably not the same as the meaning of logic. This difference in meaning had to be discovered; it could not be willed.
Actually, it was Humpty Dumpty who famously anticipated the originalist theory that meaning is conferred by an act of will.
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to meanan—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
In Humpty Dumpty’s doctrine, meaning is determined by a sovereign master. In originalist doctrine, the sovereign master is the presumed will of the people when the Constitution and the subsequent Amendments were ratified.
So the question whether capital punishment is “cruel and unusual” can’t be answered, as Scalia insisted, simply by invoking a rule of recognition that freezes the meaning of “cruel and unusual” at the presumed meaning it had in 1790, because the point of a rule of recognition is to identify the sovereign will that is given the force of law, while the meaning of “cruel and unusual” does not depend on anyone’s will. If a judge reaches a decision based on a meaning of “cruel and unusual” different from the supposed original meaning, the judge is not abusing his discretion, the judge is engaged in judicial reasoning. The reasoning may be good or bad, right or wrong, but judicial reasoning is not rendered illegitimate just because it assigns a meaning to a term different from the supposed original meaning. The test of judicial reasoning is how well it accords with the totality of judicial opinions and relevant principles from which the judge can draw in supporting his reasoning. Invoking a supposed original meaning of what “cruel and unusual” meant to Americans in 1789 does not tell us how to understand the meaning of “cruel and unusual” just as the question whether logic and mathematics are synonymous cannot be answered by insisting that Russel and Whitehead were right in thinking that mathematics and logic are the same thing. (I note for the record that I personally have no opinion about whether capital punishment violates the Eighth Amendment.)
One reason meanings change is because circumstances change. The meaning of freedom of the press and freedom of speech may have been perfectly clear in 1789, but our conception of what is protected by the First Amendment has certainly expanded since the First Amendment was ratified. As new media for conveying speech have been introduced, the courts have brought those media under the protection of the First Amendment. Scalia made a big deal of joining with the majority in Texas v. Johnson a 1989 case in which the conviction of a flag burner was overturned. Scalia liked to cite that case as proof of his fidelity to the text of the Constitution; while pouring scorn on the flag burner, Scalia announced that despite his righteous desire to exact a terrible retribution from the bearded weirdo who burned the flag, he had no choice but to follow – heroically, in his estimation — the text of the Constitution.
But flag-burning is certainly a form of symbolic expression, and it is far from obvious that the original meaning of the First Amendment included symbolic expression. To be sure some forms of symbolic speech were recognized as speech in the eighteenth century, but it could be argued that the original meaning of freedom of speech and the press in the First Amendment was understood narrowly. The compelling reason for affording flag-burning First Amendment protection is not that flag-burning was covered by the original meaning of the First Amendment, but that a line of cases has gradually expanded the notion of what activities are included under what the First Amendment calls “speech.” That is the normal process by which law changes and meanings change, incremental adjustments taking into account unforeseen circumstances, eventually leading judges to expand the meanings ascribed to old terms, because the expanded meanings comport better with an accumulation of precedents and the relevant principles on which judges have relied in earlier cases.
But perhaps the best example of how changes in meaning emerge organically from our efforts to cope with changing and unforeseen circumstances rather than being the willful impositions of a higher authority is provided by originalism itself, because, “originalism” was originally about the original intention of the Framers of the Constitution. It was only when it became widely accepted that the original intention of the Framers was not something that could be ascertained, that people like Antonin Scalia decided to change the meaning of “originalism,” so that it was no longer about the original intention of the Framers, but about the original meaning of the Constitution when it was ratified. So what we have here is a perfect example of how the meaning of a well-understood term came to be changed, because the original meaning of the term was found to be problematic. And who was responsible for this change in meaning? Why the very same people who insist that it is forbidden to tamper with the original meaning of the terms and provisions of the Constitution. But they had no problem in changing the meaning of their doctrine of Constitutional interpretation. Do I blame them for changing the meaning of the originalist doctrine? Not one bit. But if originalists were only marginally more introspective than they seem to be, they might have realized that changes in meaning are perfectly normal and legitimate, especially when trying to give concrete meaning to abstract terms in a way that best fits in with the entire tradition of judicial interpretation embodied in the totality of all previous judicial decisions. That is the true task of a judge, not a pointless quest for original meaning.