Constitutional Interpretation: Dworkin's Response to Scalia

Notes and Thoughts on A Response to Scalia by Dworkin


Overview
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.


Conclusion
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.

Constitutional Interpretation: Originalism & Textualism (Scalia) Part 2

Part 2 of Notes and Thoughts on Interpreting the Constitutions by Antonin Scalia 


Key Quote:
"To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designated, or could be designated, to serve; or too hide-bound 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."


Preamble:
Read Part 1 for Scalia's criticisms of intentionalism and constructivism.


The main issues for Scalia are rule of law and judicial restraint.  In his conception of the law he values stability and predicability above other possible values.  Also, when judges extend application of laws beyond their original textual meaning they are undermining the democratic process.  If a law does not adequately cover some new technology or social circumstance, modifying the law is not the role of the judiciary; that is the role of the elected legislature.  If the judiciary engages in law modification and unreasonable extension, they enter the political sphere.  If they enter the political sphere, the judicial appointment process will become politicized.  (Gotta admit, he's got a point there...)


Textual Originalism


General Definition: the text should be interpreted in line with its original meaning.  Basically, we try to figure out what the words and phrases meant at the time they were written, not what the law's intended consequences were.


So, how should we interpret the meaning of a statute?  "It should be construed reasonably, to contain all that it fairly means."


For example, Scalia disagrees with a decision his court made regarding a drug/gun law.  The law is that there is an increased penalty if "during and in relation to a drug trafficking crime" a defendant "uses...a firearm".   In the case in question the defendant brought an unloaded gun to a drug transaction but it was to trade the gun in exchange for the drugs.  Scalia claims that any reasonable interpretation of the meaning of the law should result in an acquittal.  His reasoning is that the reasonable textual meaning of "uses a firearm" is as a weapon, i.e., what they are usually used for,  not as an item with which to barter.


He remarks "when you ask someone 'do you use a cane?' you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway".


Textualism and Morality


To give his view on this matter he discusses how he thinks we ought to interpret the Due Process Clauses (Fifth and Fourteenth).  He says these should only be interpreted within the limited range of meaning that the words in the text have.  These clauses say nothing of whether certain punishments (he's referring to capital punishments) are immoral or not; it says only that liberties, property, and life cannot be removed by the state without due process.


If the legislature (on a federal level) decides to abolish capital punishment and amend the Constitution or if each state legislature decides to abolish it, that's up to them, not the judiciary.  That is a political and democratic decision, and the judiciary should restrict itself to interpreting statutes within the context of original textual meaning.


In response the the charge that textualism is formalistic he replies, "of course it is!"  That's what the rule of law is for Scalia.  You look at the meaning of the text to determine whether a law applies or not.  "It is what makes a government a government of laws and not of men".  End of story.


Interpreting Constitutional Texts


The distinctive problem of Constitutional interpretation is not that "special principles of interpretation apply, the usual principles are being applied to an unusual text".   Basically, the principles in the Constitution are vague.  It would have been impossible for the framers to have written out every possible situation and explained how the principles applied to that situation.  Furthermore, such a complex code "could scarcely be understood by the public".  For that reason they are general principles and from them we deduce particular applications.


From these facts he suggests that, when interpreting the constitution words and phrases should be given and expansive rather than narrow interpretation--"though not an interpretation that the language will not bear"  (subjective qualification! aruuuga! aruuuga!)


For example, although the First Amendment only explicitly mentions speech and press, we include things like handwritten letters (and now email).


The Real Issue: Original Meaning vs Current Meaning
So, the real issue in Constitutional interpretation is not between Framer's intentions and objective textual meaning but between original meaning and current meaning.


Scalia identifies those in the "current meaning" school as synonymous with the "Living Constitution" movement: The Constitution is a body of law that grows and changes from age to age, in order to meet the needs of a changing society.  "And it is the judges who determine those needs and 'find' that changing law".


Scalia laments that the study of Constitutional law uses as its starting point analysis Supreme Court rulings instead of the text as it was originally understood.  The logic being that subsequent rulings will depend not on original textual meaning but on contemporary interpretations "with no regard for how far that logic, thus extended, has distanced us from the original text and understanding".


Worse yet, is that if the previous interpretations don't yield the view that is desirable to the current Court they will discount some of the previous rulings and appeal only to the ones that support their current view.   If no previous rulings support their view, they will overturn the previous rulings in order to get the desired result.


For Scalia, it seems that whatever the prevailing Court thinks ought to be a Constitutional right is a Constitutional right.  But clearly, we must distinguish between what is actually in the text and what we'd like for there to be in the text.


The courts rulings (in the case of the 8th, i.e. cruel and unusual punishment) ought not to "reflect the evolving standards of decency that mark the progress of a maturing society".  As much as the Court might not like the original meaning, it is not the job of the Court to substitute their own.  That's the job of the democratically elected legislature.


Again we see Scalia's worry about stability, predictability, and impartiality of the law.  This type of interpretation also speaks to his concern about the judicial selection process becoming politicized and the judiciary usurping power from the democratic institutions of government.


Flexibility and Liberality of the Living Constitution 
This is the part where (if it weren't apparent already) we really get to see Scalia's political ideology.  The standard argument for a living Constitution approach is (which Scalia opposes):


"Such an evolutionary approach is necessary in order to provide the flexibility that a changing society requires; the Constitution would have snapped if it had not been permitted to bend and grow."


One of the problems he has with this view is that all the "growing" has been in the direction of putting restrictions on democratic government.  In other words, it seems like he's against rulings that prevent diversity in policies among local state government.  Here's the list of (some) things that restrict democratic gov't that he's against: (i.e., no longer permitted for local or federal gov't to do)

• admitting in a state criminal trial evidence of guilt that was obtained by an unlawful search
• permitting invocation of God at public-school graduations
• terminating welfare payments as soon as evidence of fraud is received, subject to restoration after hearing if evidence is satisfactorily refuted
• imposing property requirements as a qualification for voting
• prohibiting anonymous campaign literature
• prohibiting pornography

Since all of these interpretations yielded restrictions on local state governments to legislate on these matters, they are anti-democratic.


Dworkin, whom I will discuss in my next post, (maybe?) has an interesting response to this.  In every case, these interpretations increased the individual protections and rights of minority groups with often little access to the political process.  An important balancing act in a democracy is the protection of minority groups' rights from the policies of the political majority.  So, while Scalia opposes restrictions on the ability of political majorities to enact policies in conformity with local values and customs, Dworkin is concerned with protecting minority rights from the political majority.


Both are important components of democracy.  As we can there there is a question about the role of the law:  One might ask, given that both are important, should the law occupy itself with preserving and ensuring the dominance of majoritarian policies or protecting minority rights from the majority?  Ok, I'll admit, I might have a bias...


So, in Scalia's view, while the Living document account purports to bring about flexibility, it in fact does the opposite.  It restricts what local governments can do, thus, the Constitution will "not seek to facilitate social change but prevent it."


Lack of a Guiding Principle for Evolution
Scalia gives a second argument agains the Living Constitution approach: (a) an evolving document runs counter to the notion that the purpose of the document is anti-evolutionary (b) there is no principle that's guiding the evolution of the document, and probably there could not be any agreement on such a principle.


What should judges consult to figure when and in what direction evolution should occur?  Is it majority will?  Editorial columns?  Opinion polls?  The philosophy of Locke?  Hume?  Rawls? Mill?  Palmer?


As soon we give up on the permanence of the Constitution, er'body gong have a different opinion about which direction interpretation should go.


This is not to suggest that textual originalists will always agree either.  There is room for disagreement on this matter.  Sometimes there will be interpretive questions about how the text applies to new technologies.  But "at least the originalist knows what he is looking for:  the original meaning of the text".  The difficulties of textual analysis are small compared to those of direction of evolution.


Case:  Death Penalty
Some of the Justices don't think the death penalty constitutional even though it is explicitly mentioned in the text.  Their grounds is that it constitutes "cruel and unusual punishment".  But the fifth and fourteenth amendments only guarantee due process, it does not say that the death penalty violates the cruel and unusual punishment clause.


On what grounds have these Justices constructed their view?  How was the death penalty constitutional before, but now it isn't?  And how do magnets work?  Dworkin has answers, but that's for a later post.  It's past 4am and I need to finish this up.


Closing Remarks
Scalia says that it doesn't seem to matter the principle upon which the Constitution evolves because "an evolving constitution will evolve the way the majority wishes".  I'm not sure I agree about that.  Call me cynical, but I think it more likely that it will evolve in the direction of the group with the most political power, which in US politics, isn't necessarily the majority.  But suppose he's right and it does evolve in the direction reflective of the majority view.  How is that undemocratic?  Isn't that one of his concerns?  Should interpretation not in part reflect the majority?


There seems to be a contradiction in his view.  Just a few pages ago he was all "boohoo! the Court is ruling in favour of protecting minorities and not letting the majority do what they want.  And that makes me saaaaaaaad!"  So, do you want policy to reflect the majority or not?


In fairness, as I have mentioned, he does have a legitimate concern here.  If the interpretation can evolve, then the judiciary becomes politicized because people will want to make sure the judges who get selected reflect their principles of interpretation.


This fear is legit.  But not too legit to quit thinking about possible principles by which we could interpret the Constitution.  He has a reply to this too.  If a portion of the Constitution doesn't fit at all with our modern world of flying cars and robots we can change it, but through the appropriate institutions--the legislature.  There's historical precedent for this, like the extension of voting rights to women (19th Amendent).  His theory of adjudication is that the Court is just there to interpret.


"If the courts are free the write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that.  This, of course, is the end of the Bill of Rights whose meaning will be committed to the very body it was means to protect against; the majority."


Uh, dude.  I thought you were against restrictions on what the majority can do?


A last major theme that I will mention (more in the Dworkin post) is Scalia's theory of adjudication.  In his view, the judge may not bring in moral principles when making his judgment.  There isn't a total ban on normativity, he does argue for "reasonable interpretation".   Anyway, Dworkin agrees that we should be textualist and originalist but that the principles invoked in the amendments are meant to be interpreted in line with contemporary morality rather than 18th Century morality.  On Dworkin's model of adjudication, bringing in contemporary moral considerations is legitimate for a judge to do.

Constitutional Interpretation: Originalism and Textualism (Scalia) Part 1

Notes and Thoughts on Interpreting the Constitution by Antonin Scalia 


I apologize for typos and such, I haven't had time to thoroughly proof read this post yet.


Preamble


So, I'm writing my philosophy of law paper on constitutional interpretation; "originalism" in particular.  At first, I thought the whole idea of originalism kind of silly, but after doing some reading and thinking it's clear that there are some important reasons to consider some brands of originalism.  It really comes down to what kind of originalism we're talkin' 'bout.  Originalism can be divided roughly into two camps: original intent and original textual meaning.  Those in the original intent camp derive their interpretation from trying to figure out what the particular issues of the time were and interpreting the constitution in relation to that.  


There are quite a few general problems with this view which I won't go into because I'm focusing on textual originalism.  But because I know how curious you are are just list a couple of the problems:  1. who's intent? (the particular framer that wrote it? all the framers together? the intent of the state legislatures that ratified it?  the intent of the small group of white male landowners who voted in the representative legislature?) 


2.   Even if we answer this question, how can we ascertain what was in the minds of the group who's intent counts?  and that's just the tip of the iceberg.   We still have to justify why these peoples intentions should be held as infallible and true for all time.   Enough of that, lets move on to Scalia's specific arguments against intentionalism, which have to do with his concept of the rule of law.


Scalia, the Rule of Law, and Intentionalism 


Scalia begins with a basic question:  What is the objective of legal interpretation?  In addressing this question he systematically dismisses different intentionalist arguments.
1.  Should judges interpret what the legislature intended by the law or the meaning of the words?  Since there is no way to go inside the head of legislators it makes more sense to go by the textual meaning.

2.  Should new statutes should be interpreted in such a way that makes them consistent and compatible with existant law.  No, we should not assume that the legislator, when drafting the law were aware of every other existing law and how the new law might fit.  Nor should we assume that it was their intent for there to be harmonization.  If we really want to know was is meant by the law we need to interpret the meaning of the text.  We shouldn't hypothesize about the goings-on inside the heads of others.  


3.  This next point concerns conception of what the "rule of law" ought to be.  We want applications of the law to be predicable for the general public.  If a law is enacted and seems to mean one thing but is later interpreted as meaning something else, this makes it difficult for people to know what behaviours fit within the law.  They may act in a way that seems to conform with the law only to find out that the legislature had in mind some other intent, and end up unknowingly contravening it.  For the sake of predictability we ought to interpret them as the text indicates, not as we might hypothesize someone to have intended.  


The other objection related to desiderata of the rule of law is that, well, we prefer the rule of law over the rule of an individual.  If we interpret according to what a law writer intended instead of the textual meaning then we are ruling according to an individuals desires not according to the law.  "Men may intend what they will; but it is only the laws that they enact which bind us".


There is another related question here about the role of the judge in a legal system (which, incidentally, the Constitution says nothing about).  If judges are permitted to interpret law in terms of perceived intent, we should expect that the intent they will read into the law just happens to coincide with their particular political/ethical views.  If this is the case we lose out on another desiratum of the law: impartiality/objectivity.  Judges, interpreting based on intent, will be inclined to interpret laws as what they think they ought to mean rather than what the text means.  


Scalia's Examples of Legislative Intent Being Applied Instead of Original Textual Meaning:  Church of the Holy Trinity v. US and A (1892)


Vs. Intentionalism
The church contracted an Englishman to be its rector and pastor (hehe! he said "rector").  The Circuit Court ruled that this violated a statute against "assisting or encouraging the importation or migration of any alien...under contract or agreement...made previous to the migration to perform labour or service of any kind."


Later the Supreme Court overruled and reversed the decision because extra-textual indications indicated that "the statute was intended to apply only to manual labour"; thereby making permissible entry on rector (hehe) duties.

Then, the Court goes on, at length, to say that because the US and A is a religious nation that "the construction invoked cannot be accepted as correct."


Scalia agrees that the first justification--the appeal to extra-textual evidence to guide interpretation of textual meaning was justified, but he disagrees that the court should have appealed to their belief that US and A is a religious nation to nullify the validity of the law as applied to rectors.

Next, we get more on Scalia's notion of the rule of law.  He believes in judicial deference, that is, the judiciary should not reinterpret a law in such a way that constitutes a change in the law.  In such matters, the judiciary should defer to the legislature.  The role of the judiciary is not to make law.  "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..."


Vs. Constructionism


Again, Scalia continues his arguments in favour of deference by opposing a constructionist view.  He characterized constructionism as a the permissibility of a judge to consider "not only what the statute means abstractly, or even on the basis of legislative history, but also what it ought to mena in terms of the needs and goals of our present day society."  I.e. "the law means what is ought to mean".


This type of judicial "activism" runs counter to democratic theory.  It is not the role of judges to interpret laws in ways that might be in line with a current moral view.  That is the role of the legislature.  By removing that role from the elected representative, judges are undermining democracy--even if the ruling is desirable to er'body.  If such a decision is desirable to er'body then the law can be revised in the legislature.  


Finally, decisions that read into statues "intentions" or are interpretations that don't directly follow the most reasonable meaning of the text as it was written are weakening the predicability and stability of the rule of law.  If a law's meanings change over time according to individuals' interpretation, that is rule of man, not of law. 


Part 2:  Textualism--Scalia's Positive View on Constitutional Interpretation

see next post

Parfit on Moral Disagreement: Part 2

Notes and Thoughts on Moral Disagreement as Discussed in Parfit's "On What Matters" Ch. 34

Parfit Vs Basic Argument from Disagreement

Suppose you and your counterpart are in ideal epistemic conditions.  You are aware of and agree on all the non-normative facts yet your opinions differ on what the true moral belief is.  In a way, we can see this in the abortion debate and in the vegetarianism debate, to name a few.  Since both parties in these debates often agree on the  non-normative facts, we should not rationally suppose that our intuitions about the issue are true.  The basic idea is that, given epistemic parity, there is no compelling reason, beyond ego, to suppose that our normative belief is the correct one or that our opponent wrong.

Parfit says that the Intuitionist response must be that in such situations where everyone knows all the relevant non-normative facts there wouldn't be disagreement over moral assessment.  In such ideal conditions, everyone would agree on the normative belief.   For example, if everyone on all sides of the abortion debate agreed on and knew all the relevant non-normative facts, the Intuitionist has to say that they'd all agree on what is the correct normative belief regarding abortion.

Hmmm...I'm not too sure what to think of that claim.  Anyhow,  the bottom line here is that Parfit is making an empirical claim.  He's saying that, given all the relevant epistemic information, we'd make the same moral judgments.

The cool thing about empirical claims is that they can be tested.  Remember way back in the Intro of Part 1 I axed you to answer the trolly questions? video of trolley problem   Well, here's the thing.  There's a branch of philosophy called xphi (as in "experimental philosophy") where one of the things  they do is psychology-like experiments to test testable philosophical claims.  (check out this link to see some cool xphi experiments)          
     
There are some xphi experiments that test people's intuitions on moral questions.  It's been a while since I read it but I remember reading something on an xphi experiment testing people's intuitions on the trolly thought experiments.  I don't remember the details but I do remember that there wasn't unanimity in moral judgments for what to do in the trolly problems. I'll have to look it up later for my paper but I think something like 3/4 said they'd pull the lever and 3/4 said they wouldn't push the fat man.  The odd thing about the thought experiment is despite the outcome being the same (1 person dies to save 5), most people aren't consistent with their answer.

So how does this apply to Parfit's claim about er'body having the same intuitions given perfect information?  It seems to falsify it because, in the thought experiment, everyone has the same relevant non-normative facts, yet a statistically significant portion of respondents disagree with the majority.

There's a possible reply for Parfit here.  In his senario he says that not only would agents have all the same non-normative facts but they'd also be using the same normative concepts (and understand the relevant arguments and not be affected by distorting influences).  So, his way out is that he can say, despite the fact that er'body agrees about the non-normative facts in the trolley experiment, they aren't all starting with the same normative concepts.  That explains the different outcomes.

Lets pause for a second and look at what Parit (might) mean here by "shared normative concepts".  Given what he has said in previous chapters we can assume that included in this category of concepts is the notion of external reasons in favour of/against an action.  

A quick review of Parfit's notion of "reasons":  For Parfit, a reason is a fact, awareness of which counts in favour of/against a particular action.  This is in contrast to Williams' notion of a reason which is a psychological account of motivation:  I.e., a reason for action is when an agent had a psychological desire to be satisfied.  If an agent has no psychological desire to be satisfied, then they have no reason for an action.  As I have discussed in several other posts, Williams' notion of reason is purely internal to the agent whereas, Partit's is external to the agent and objectively true to all rational creatures. 

Another thing we might include in Parit's cluster of normative concepts in the idea of intrinsic goods; I.e., things that are good in themselves, not because they lead to further things.  I'm going to hypothesize that he's including this too.

"I Am a Computer" (*in a robot voice)
Now here's where things get a little tricky.  I could be totally wrong with this but I'm going to present an analogy to Parfit's hypothesis.  Imagine a moral decision making computer in the future that has a cool robot voice.  It says, "I am a computer" a lot.   Not only does it talk in a cool robot voice but it solves moral dilemas for us.  How might it do this?  One thing it needs is the data.  On Parfit's model that will be the non-normative facts.  The next thing it needs is algorithms to interpret and weigh the data.  These will be the normative concepts.  The program will provide the logical structure, which for Parfit will be the arguments (maybe?).   So, Parfit is saying that if two properly functioning computers with cool robot voices had all these elements in common, they give the same output.

Problem 1:  Which normative concepts?
Hmmm...he's probably right but I'm not sure this is a very meaningful claim.  It seems tautologous to say that provided we shared the same normative concepts we'd come up with the same normative conclusions.  Duh!  In a way it seems like he's side-stepping the whole problem.  

One of the main reasons for which we have moral disagreement is because we don't share the same normative concepts. Furthermore, there doesn't seem to be any objective way to arbitrate between competing normative concepts without already presupposing some prior meta-normative concepts.

Parfit might reply that reasons allow us to arbitrate between competing normative.  But I think this assumes everyone is going to be equally responsive to the same reasons.  I'm not sure that will be the case.  

Problem 2:  Non-testability 
I don't think this claim is testable.  Lets grant that in making a moral decision, two or more people meet all the right epistemic conditions and are using the same normative concepts.  There's still another problem.  It is highly unlikely that 2 or more people will ever share every normative concept.  Maybe Bob has normative concepts {A, B, C, D, E} and Mary has normative concepts {A, B, C, D}.  In some cases, concept E won't play any determining role in the outcome; in others it might.  

Of course, Parfit can reply that just because it's not actually a testable claim doesn't make it false.  He'd be right, but it doesn't make it true either.  It makes it untestable, and so difficult to know how things would actually play out. 

Parfit can also reply that in the case where E is a relevant factor, the disputants don't share a relevant concepts, and so his hypothesis is right.  After all, his claim is that if disputants shared relevant normative concepts, they'd get roughly the same moral answer.  He has a strong response here, but how significant is the claim that if people share relevant normative concepts, they will get a similar answer?  

Problem 3:  Problem of relevant concepts and weight.
Suppose we run the trolley experiment on some people.  We also check to see if they use the same normative concepts. One possible problem is that while they agree on which concepts are relevant, they might not agree on how the concepts should be applied or weighed.   For example we ask:  "are you applying external reasons to your analysis" and they answer in the affirmative.  It's possible that 2 people might agree on using the normative concept of external reasons, but they might disagree on what those reasons are and how they should be weighed in a particular situation.

Parfit might respond that people can make mistakes in their application and weighing of normative concepts. Mathematicians can disagree on things but they are still able to recognize mathematical truths.  That there are occasional mistakes doesn't mean there is no objective truth, it only means that someone has made a mistake.  The method needn't be infallible to support an Intuitionist account of moral realism--we're human, we're bound to err.  We could be deficient is our appraisal of which non-normative facts are relevant, how and which normative concepts should be applied, and there may be distorting influences (like culture/upbringing).  These facts only show that we can get it wrong, not that there are no objective normative truths.

A problem with this reply is that it is non-falsifiable.  Anytime there's a moral disagreement, Parfit can say either that someone has just made a mistake or that the two parties have slightly different normative concepts and one of them has the wrong one.  There's always some sort of ex post facto explanation open to him.   

Distorting Influences
Parfit partly acknowledges this problem by saying we can't simply claim that someone has been subject to a distorting influence anytime they end up with a belief that differs from our own.  He needs to give a more careful description of what constitute distorting influences.  He gives self-interest as a legitimate distorting factor of which we should be wary in our moral reasoning.  True dat...unless you're an egoist, in which case it is an elucidating factor...different normative concepts...oh! snap!

Parfit concludes this section by setting the bar for what is required for the Intuitionist account of moral realism to be true.  "Intuitionists need not claim that, in ideal conditions these disagreements would all be completely resolved.  But they must defend the claim that, in ideal conditions, there would not be deep and widespread moral disagreement."  

I can dig that.  However, a problem I foresee is how Parfit will show that convergence over values is a product of there being objective moral truths instead it being a product of cultural convergence or evolutionary forces.  Both stories could account for moral agreement.  What would really be compelling for the moral realist's case is to give examples of widely divergent cultures that share significant moral values. That, in my estimation, would carry some weight.  

Note: I wrote this before reading the entire chapter.  Later in the chapter Parfit makes stronger defenses of his claims and addresses some of my worries.  Why does he have to be so reasonable?  How am I supposed to write a critical paper about someone I'm starting to agree with?  Curse you Parfit!

Moral Disagreement Part 1: Parfit

Notes and Thoughts on Parfit and Moral Disagreement (Ch. 34)


Introduction
Before getting into the philosophy, for those of you who aren't familiar with the trolley thought experiments, answer these questions before proceeding:


Trolly Q1:  You are driver of a runaway tram which you can only steer from one narrow track on to another; five men are working on one track and one man on the other.   You are currently on the track to kill the five.  Do you flip the switch to change tracks and cause the one man to die to save the 5?


Trolly Q2:  This time you aren't the driver of the runaway tram.  This time there's only one track, and there are 5 workers working on it.  If the train reaches them, they'll all die.  You are on an overpass.  You notice a fat man whose body weight is such that if you pushed him off he'll cause the tram to derail and the 5 workers will be saved.  Yay!  But only at the expense of the fat man's life.  Boo!  Do you push him off?


Was your answer different for the 2 questions?  The outcome was the same, so why might it be different?  What's the difference between the situations?  And most importantly, how do you justify your position?  Keep these questions in mind as we discuss this section.  In a way Parfit wants to argue that under ideal conditions we'd all give the same answer.  There's a fairly large body of empirical evidence to the contrary, but he'll probably reply that in some way the ideal conditions hadn't been met.


Overview
Yo, check it! (That means I'm about to drop some knowledge)  We is about to talk about D-Rock Parfit's replies to the argument from disagreement (and some variations).  The argument from disagreement is one of the classical arguments against moral realism (that there objectively true moral values).   I did a more detailed account of the argument from disagreement in my post on Mackie (Mackie calls it "the argument from diversity") but for the one or two of you not familiar with the argument it goes a lil' somethin' like this:
1.  There is somes peoples.
2.  The peoples is disagree very muchly about what is goodly and badly.
3.  If there were such a thing as objective moral values, we would expect to find agreement, not disagreement.
C.  Therefore, it is seeming there are no objectively true moral values, only relative values.  I.e., Moral truth is always relative to social/cultural/historical context; it is never objectively true.


Parfit says this argument is badly.  He does not like it.  Not one little bit!


Two last definitions, normative belief:  A belief about something's value.  For example, "telling the truth is good" or "causing unnecessary pain is baaaaaaaad."
Normative reason:  That's a reason in favour of doing 'x'.   Or, that's a reason against doing 'x'.  Or, that's a good/bad reason to do 'x'.


Ok, enough lol catz language.  Lets look at his criticisms.  (Can you imagine turning in a whole paper in lol catz language?  That'd be awesome. lol.)


I will add one more point.  Parfit is going to advance the thesis that ultimately it is our intuition that tells us that certain actions and reasons for actions are morally good.  This thesis is contrary to other realist positions that say we can know that something is good either by empirical means or by conceptual analysis.  


Parfit's Main Claims


Yo, check it!  Parfit is a moral realist:  He thinks that there are objective moral values.  More specifically he makes several claims:
(A).  There are some irreducibly normative reason-involving truths, some of which are moral truths.
This means there are objective truths about moral values.  For example, there are certain things that are objectively good--in the moral sense--to do, and knowing what these things are gives us reasons for or against an action.  Morally good things aren't good because of their consequences, but they are good in themselves.  Maybe, helping people is one of these things.  "But helping who?"  "I don't know, people who need help!"
(B).   Since these truths are not about natural properties, our knowledge of these truths cannot be based on perception or on evidence provided by empirical facts.
This one's pretty self-explanatory.  Things aren't good because of some property they have, things are good because they are essentially good.  Morally good things are intrinsic goods.
(C).  Positive substantive normative truths cannot be analytic, in the sense that their truth follows from their meaning.
Whether something is good is not discoverable by analyzing the meaning of the term.  E.g., That "justice" is good, isn't discoverable through its definition the way that we can discover what a bachelor is by understanding the meaning of "unmarried man".   Identifying something as good isn't a matter of analyzing the concept of the word.


Therefore
(D).  Our normative beliefs cannot be justified unless we are able to recognize in some other way that these beliefs are true.
Since we can't know what things are good based on empirical investigation, apprehension of properties, or conceptual analysis, we need another way to be able to identify what things are objectively good.


And, Parfit says, we do have this capacity.  Some of our normative beliefs give us reasons in favour/against certain actions and we are responsive to these reasons.  Some of our normative beliefs are "self-evident, and intrinsically credible".   


For example:  Poking children in the eyes with needles for fun is wrong.   According to Parfit, we just know that this normative belief is true.  We know this to be true just as we know that a something and its negation cannot both be true (at the same time and place).


Of course the big question is how do we know these assertions to be true without appeal to our sensory perception or definitions?  It's not like I need to see someone poke a child in the eyes to know it's wrong...Parfit proposes intuitionism:  The theory that we have intuitive abilities to respond to reasons and recognize some normative truths.


Parfit is well aware of the problems with intuitionism.  Where was people's moral intuition during slavery?  Back then people often argued it is intuitively true that Africans ought to be slaves.  And what about wars?  People do horrendous things because they take it to be intuitively true that the other side is evil or that they're on the side of good (see: US military culture, or any military culture for that matter...).


Nevertheless, in the less clear cases we ought not to rely only on intuition about the act.  This is where Parfit adds in a requirement that we assess the strengths and weaknesses of conflicting reasons, arguments, and principles.  The idea is that, as with particular acts, our intuition gives us "similar abilities to recognize truths about what is rational, and about what we have reasons to believe, and want, and do."


I'm not sure I agree with him here.  I think all one has to do is look at American politics to see that people clearly do not agree on what truths are rational "and what we have reasons to believe, and want, and do".  However, I do agree with him (and Scanlon) that appeal to reasons for/against committing a particular action "is the only defensible method".   I mean, for serious, if you can't give reasons for why you did something, beyond "I just felt it was the right thing to do", then you is wack.


The problem for Parfit is in trying to show that people's intuitions will magically aligne regarding what they think are good objectives, reasons and/or principles for action.  To deal with this objection Parfit argues that just because there might be disagreement over what 2 people find to be "self-evident", doesn't imply that we don't have the capacity to find out.  


Consider our other senses.  People can disagree over what they see or hear, yet we don't conclude from that that they are blind and deaf.  Well...sometimes, I do.  Nevertheless, despite their infrequent lapses, we don't conclude that vison and hearing aren't reliable ways of coming to know truths about the world.


One more reply to the anti-intuitionists is that people might find that the beliefs over which they disagree aren't of the self-evident variety; that's why they're disagreeing.   Well, that's sounds like a mighty convenient argument for Parfit.  "No, no, no! it's not that one of your intuitions is wrong, it's that regarding this particular matter, there is no self-evident truth--that's why you're disagreeing".  But this reply avoids one difficulty by creating another.


How is it that we are supposed to distinguish between intuitive beliefs that are self-evidently true and those that only appear to be self-evidently true?  If Parfit's answer is that we should resort to our intuition to sort it out, I'm gonna punch him right in the face!   Oh! I shouldn't say that.  Parfit's a nice guy.  Almost all accounts of him never fail to mention how nice he is.  But anyway, you know what I mean.  There's a vicious circle goin' on here, and it's making me dizzy!