Theories of Constitutional Interpretation and How to Think About Upcoming Constitutional Cases

I. Introduction

Anytime a constitutional case intersects with the culture wars, you can bet your bottom dollar that everyone on social media will
magically become a constitutional scholar--in their own minds anyway. Yes, folks, merely believing something is sufficient for it being true. But I digress (already)...

In this post, I'm going to give an overview of the various theories of constitutional interpretation and mention a few of the trade-offs that come from selecting one over the other. Later, I'll suggest how to think about up-coming constitutional cases.

As I run through the various theories, here's a philosophical question to keep in the back of your mind: What is the purpose of a justice system and a system of laws? 

II. Penumbra Cases and Judicial Discretion 

Most people pre-reflectively conceive of applying the law as a deductive practice. Laws are general commands to do or not do some behavior. If a particular case is an instantiation of a general prohibited or required act then the law applies. For example, a local law might command, "no vehicles allowed in the city park." This is a general prohibition on a class of behaviors. Suppose that someone drives their car on the walk-ways in the park. A car (particular) is a kind of vehicle (general). It follows that the law has been broken.  Easy peezy, lemon squeezy. Why do we even have lawyers? Just pay me instead.

Now, suppose you want to go to the park with your toddler child. They have a tricycle. Are they allowed to ride it on the walking paths? It's not clear. It's a vehicle. But was the intent of the law to exclude even tricycles? Does intent even matter?

Cases where it's not clear how or if the law applies are called penumbra cases. This is in contrast with the core cases, where the law unambiguously applies. (For the classic article on deduction in the law and penumbra cases, read Oliver Wendell Holmes' wonderful The Path of the Law.)

Here's another example of a penumbra case. Congress enacts a law applying a 10% tax to all imported fruits from Mexico. Does the tax apply to tomatoes? In this particular kind of case we have a conflict between "common use" language and "technical" language. Which should we go with and why? Do we go with the understanding that most consumers will have? Or of that of a biologist? In part, our answer will depend on who we think the law serves and to whom it is directed.

Considerations of social utility might also enter. We might also consider legislative intent--why did Congress enact the law in the first place? What were they hoping to achieve? As I hope you can start to see, legal interpretation is not always straight forward. If it were, we likely wouldn't need a court system. Employing bureaucrats to issue fines and sentences would be sufficient.

In the above cases, the law is unclear for reasons related to the inherent vagueness of language. In other penumbra cases, it's not clear what to do because the law is silent yet a wrong seems to have occurred. This happens because, among other reasons, it's impossible for legislators to anticipate every single act that could cause harm to another.

Consider one famous constitutional case--Rochin v. California (1949). In this case, on suspicion of drug dealing, the police entered the open door to Rochin's residence then forced open his bedroom door. When the police entered his room they noticed two capsules sitting on the bedside table. "Whose are those?" they asked. Rochin reached for them and swallowed them. The police jumped on him tried the force the capsules out of him. Unsuccessful, they handcuffed him and took him to the nearest hospital where they forcibly had his stomach pumped to produce the capsules. The state of California used the opioid capsules as evidence against Rochin. At the time there was no California law against extracting physical evidence from a suspect in this way.

The 14th Amendment forbids any state from depriving "any person of life, liberty, or property, without due process of law." Was this a violation of due process? On some interpretations, due process simply means that the existing state legal procedures are followed. If stomach-pumping wasn't prohibited under California law then due process wasn't violated. There are, of course, other ways to conceive of due process and reasons for why we might think it entails more than simple adherence to whatever state laws are in effect. We'll circle back to this later.

All this to say, in almost all cases that make it to the Supreme Court, it will not be straight-forwardly clear whether or which law applies, what meaning judges should ascribe to the text of the law, what Congress intended by enacting the law, what reasons legislators had for ratifying the law, which of these considerations should prevail when they conflict, and a whole host of other considerations. In short, judges will have to use discretion in weighing competing variables in their decisions on penumbra cases. 

A long-standing concern with granting judges discretion is that they will rule merely according to their personal convictions. The solution, some say, is to get rid of judicial discretion. But I hope from the albeit short list of examples above you are able to appreciate that judicial discretion is necessary to a functioning legal system. There are libraries of cases where it's not clear how the law properly ought to apply. Such cases can only be resolved by allowing some degree of judicial discretion.

So, here's our situation. A justice system requires judicial discretion but there is a legitimate concern that judges could end up using discretion badly. They might use it as a pretext to merely rule according to their own private values: this is particularly worrisome where there is latent or explicit racism. In a democracy, some people think that judicial rulings in penumbra cases ought to reflect the prevailing views of the community rather than a single powerful individual in that community. After all, what could be the legitimate purpose of a justice system if not to render judgements that best accord with that community's general sense of justice?

To prevent pernicious discretion we need a theory of legal interpretation (also called legal construction) that we apply consistently across cases. When we consistently apply one theory to all cases, a couple of good things might happen:

1. We reduce the likelihood of pernicious discretion.
2. The law becomes more predictable because we know in advance how judges might rule on hard cases. This is important because a central purpose of having laws is to govern behavior. Citizens can only make important decisions when they can reasonably predict in advance which sorts of actions will be punished and which won't.
3. The law becomes more consistent. The thread from legislation to various later rulings across time will be held together by a common theory of interpretation. Justice--whatever it is--seems to contain the idea that like cases will be treated alike.
4. The law becomes more stable. When the law changes rapidly over time, it becomes more difficult for people to figure how they may or may not act.

Ok, so what should our theory of construction be?

III. Theories of Constitutional Interpretation

A. Original Legislative Intent: Constitutional laws ought to be interpreted primarily by reference to the reasons why the original legislators voted for/ratified those laws. Most contemporary legal scholars reject this view. Why?

As a citizen, you need to know what you can and can't do without suffering state punishment. The words of law are the only things publicly available to you to guide these decisions. You don't have available to you the private reasons for which a legislator supported a law. For example, a legislator might vote for a law not because they support it but because they've made a deal with the opposition: I'll support your law if you support mine--i.e., the one I really care about. The reasons for which a legislator voted for a law are often not public knowledge. It's in their mind and unknowable to the public. Such a view is inconsistent with the rule of law. Instead it is rule of man (i.e., the subjective reasons of an individual).

Related to this problem is that different legislators might vote for the same law but for different reasons. If we interpret law according to legislative intent, then it's not clear who's reasons you ought to interpret as relevant to governing your behavior since the law will have been supported for different reasons.

Another closely related problem is that there can be a difference between legislators' publicly proclaimed reasons for voting for a law and their private reasons. Which ought to rule? The genuine private reasons or the ones that were politically advantageous to publicly express? 

As I said, most scholars reject legislative intent as a primary means of interpreting constitutional law for the above reasons. 

So, what else could we look at?

B. Strict Construction: On this view, judges have no interpretive discretion to interpret the text of the law except in an extremely literal way. E.g., 1st amendment says Congress shall make no law abridging freedom of speech. That means none—including prohibitions on defamation, yelling “fire” in a crowded theatre, speech to incite riot, etc…. For strict constructionists, judges have no discretion to interpret beyond a rigid literal interpretation of the legal text.

Here's a famous constitutional case to illustrate the point: In Smith v. United States (1993), Smith offered an undercover officer a machine gun as payment for illegal drugs. Federal law imposes mandatory sentence enhancement penalties, specifically 30 years for a "machinegun", if a defendant "during and in relation to . . . [a] drug trafficking crime[,] uses . . . a firearm."

He's the question: Did Smith "use" a firearm in a drug trafficking crime? A strict constructionist will say "yes." Strictly speaking, Smith used a firearm. The reasons for the legislation, the intent of the law, and so on have no bearing on interpretation. The Supreme Court ruled 6-3 that Smith had indeed "used" a firearm in a drug trafficking crime and 30 years of prison added to his drug sentence.

Although popular with some at the turn of the 20th Century, not a lot of legal scholars hold this view anymore (despite the Smith ruling). The closest scholarly view to strict construction is Scalia's textual originalism...(who, to his credit, was one of the three who opposed the majority opinion in Smith vs United States).

C. Textual Originalism: On this view, Constitutional laws ought to be interpreted primarily by reference to the meaning of the words in the text as those words were understood when the law/amendment was ratified.

Let's take a short step back to understand why the italicized part matters. Ronald Dworkin points out that the Bill of Rights contains deliberately vague abstract clauses: i.e., clauses and terms that require interpretation. Terms like "fair", "due process", "equal protection", "cruel", "reasonable" and so on by their very nature require interpretation. For example, since Plato and Aristotle people have disagreed over what fairness consists in. And so, we need some theory of construction to tell us how we ought to interpret these abstract terms since people will differ.

Consider a classic example from the 8th Amendment: i.e., the prohibition against "cruel and unusual punishment." How ought we to interpret "cruel" and "unusual"? For the textual originalist, we ought to understand words in the Constitution as they were originally understood at the time of ratification (1791). So, on this view, any punishment or means of punishment that was not considered cruel and unusual in 1791 ought to still be permissible today. Simply put, the standard for what counts as cruel and unusual was set in 1791. I'll return to this issue in a moment. But first we need to look at semantic originalism.

D. Semantic Originalism (aka Interpretivism): This distinction will be easiest to understand by way of example. Let's return to the 8th Amendment which prohibits excessive bail, excessive fines, and cruel and unusual punishments.  The semantic originalist says constitutional construction ought to focus primarily on the original text but that we ought to interpret the vague terms, like cruel and unusual, as they are understood today rather than how they were understood in 1791. (Note that the term "excessive" also requires interpretation and therefore discretion.)

Dworkin, a major proponent of semantic originalism, marks an important distinction between concepts and conceptions. A concept, like "fairness" is a general abstract ideal. People can disagree about whether an arrangement or outcome conforms with fairness because they have different conceptions of fairness. A conception is a particular view about what fairness is. Cultures--both across time and location--will have different conceptions of abstract moral terms.

Dworkin's point in advocating semantic originalism concerns how we ought to interpret the vague clauses. Cruel, unusual, fair, reasonable, due process, equal protection, excessive, necessary and proper, are all abstract concepts. Different historical times and places will have different conceptions of those general concepts. Judges ought to use discretion in order to interpret these concepts in ways that are consistent with the prevailing conceptions of the current time and culture since these are the people to whom the laws apply.

For example, in Rochin v California, the majority opinion argued that forcibly pumping a person's stomach for evidence violates our (current) conception of due process:

Coerced confessions offend the community's sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby brutalize the temper of a society. (Justice Frankfurter. My italics for emphasis)

In other words, our political morality today contains a conception of due process that goes beyond merely following whatever laws are in effect. How the state treats its citizens is also relevant to whether it complies with due process even if no particular law is broken.

Here's another example comparing legislative expectation or intent with semantic originalism: In Brown v Board of Education (1954)  it was argued that segregated schools violated the 14th Amendment; i.e., that "equal protection of the laws" forbids racial segregation in schools. In 1789, when the Amendment was ratified, those who voted for it did not expect or intend for it to prohibit the racial segregation of schools since many of them sustained segregation in their own constituencies. Also, previously in Plessy v Ferguson (1896), the Court had upheld "separate but equal" policies.

Here we see an example of a changing political morality where the particular conception of "equal protection of the law" changed. Should we understand "equal protection of the law" as it was expected to apply by those who ratified the 14th or as it was understood by the prevailing political morality in 1954? (Justices ruled 9-0 in favor of Brown). The semantic originalist supports the latter view. The textual originalist is committed to the former.

The founders were well-read in philosophy and wise. They understood that moral progress didn't end with them. It's an ongoing process. As human beings, they are fallible by nature. Their particular moral conceptions might be flawed or incomplete. In fact we know they were since many were slave-holders, didn't believe women should have the same rights as men, and so on.

On the interpretivist view, it's inconceivable that the founders expected the vague constitutional clauses to be interpreted forever according to a particular conception tied to a small subsection of the population in 1791. Other Articles and Amendments are very specific. This suggest that, where the drafters wanted to be specific, they were. The vague clauses are deliberately left vague so as to allow them to match the prevailing conceptions of the era in which they are interpreted.

There is a Jeffersonian democratic argument in favor of semantic originalism: Jefferson proclaims that "democracy is for the living." In other words,  it is an odd view of democracy and justice that insists the living be governed by the norms of the long-dead. In so far as we think law and a justice system ought to produce rulings that reflect the values of the community subject to those rulings, then semantic originalism gets it right.

Let's recap some of the important philosophical issues going on here. The main debate so far is between Scalia's textual originalism and Dworkin's semantic originalism. A good justice system produces rulings that are predictable and consistent across cases. On these criteria, Scalia's view has an edge. If we always interpret terms--concepts and other words--as they were understood in 1791 then rulings will be predictable, consistent, and stable.

However, we also want a justice system to rule in ways that are consistent with the values and conceptions of the community subject to those laws and justice system. Just like it would be odd for an American court to rule according to what the Taiwanese think is fair, cruel, excessive, etc... it's also odd to rule according to those terms as they were understood 250 years ago--especially when our conception may have changed, or when they are disputed.

Some argue that this view collapses into either majoritarianism or pernicious judicial discretion. Another important argument against semantic originalism is that it politicizes the Supreme Court. When Justices are understood to rule based on what they take to be the prevailing political morality, competing factions will want to ensure that it is their political morality that determines how vague clauses are understood. What is supposed to be an apolitical branch of government becomes politicized. One reply is to dispute whether the Supreme Court ever was apolitical and it might be best to just be open about its nature. Perhaps openly acknowledging the political nature of the Supreme Court is what is most consistent with democracy!

E. Loose Construction/“True” Originalism (Posner): Constitutional laws ought to be interpreted under the the theory of judicial interpretation that was common when the Constitutional laws were written since this is the theory that the legislators anticipated would be applied to those laws. Loose construction involves

“interpreting the will of the legislator, exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law…As to the effects and consequences, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” --William Blackburn, Commentaries on the Laws of England.

In other words, interpretation requires taking into account a variety of factors that a reasonable judge with discretion may apply. The text of the law is the primary resource but we shouldn’t interpret the text in a way that gives unreasonable judgments.  Justice John Marshall, considered the greatest Supreme Court Justice of his generation, was a loose constructionist. He also, by the by, helped write the Constitution and the Bill of Rights. To summarize, true originalism requires that the Constitution be interpreted with the same theory of interpretation that its drafters thought would be applied to it.

In early constitutional cases that involved the Bill of Rights--when the drafters where still alive--we see both political parties and judges engaged in loose construction. No one assumed that the rights in the Bill of Rights codified fixed meanings. This also gives some support to semantic originalism.

The main criticism here is that with so many permissible variables for judges to appeal to, on ideological cases, they'll always find a way to simply rule according to their particular ideology. We're back to the concern over pernicious discretion.

IV. How to Be a Philosopher During the Trump Era
If you're an educator that teaches political theory and philosophy of law, the Trump administration has an upside. His administration's actions have brought constitutional questions to the mainstream consciousness and media. This provides a lot of current real-world examples to discuss in class. As you watch these cases enter the media cycle, take a step back and ask yourself which theory of construction various pundits or justices are applying.

Are they being consistent across cases? Virtually every 5-4 decision is split along ideological lines. How likely is it that justices are applying a single theory of construction consistently across cases such that they always happily always end up on their ideological side? Hint: They rarely are in highly politicized cases. (See here and here).

Here's one main inconsistency to look out for. Very often people who claim to be textual originalists will actually give "expectationist" or intent-based arguments. Let's return to Brown v Board of Education to illustrate. Someone might oppose the Brown v Board of Education ruling because, clearly, many of the ratifiers did not expect the equal protection clause to have the consequence of prohibiting segregation. In other words, the argument is based on legislative expectation (I.e., how legislators expected the laws to apply) rather than the meaning of the words in the text.

This expectationist view falls prey to the same objections as legislative intent: It's inconsistent with the rule of law. The text of the law is the public document that governs our behavior--not the private reasons and (conjectures) of legislative expectation.

The semantic originalist will say rulings ought to be governed primarily by how we understand the rights clauses such as due process, equal protection, freedom of speech, excessive, etc... today. However, this is not to say intent or expectations never matter. Everyone's familiar with the distinction between the letter and the spirit of the law....

So there you have it. Thanks to my handy-dandy summary of methods, you too can join all the other online self-anointed constitutional scholars!

V. Final Thoughts
In the introduction, I suggested you keep a question in the back of your mind: What is the purpose of a justice system and a system of laws? Our answer to this question should bear on which theory of constitutional construction we support. Selecting an answer is not so simple because we don't just want one thing from a justice system, and different theories order those desiderata differently, in turn requiring different trade-offs. We want the law to be predictable, stable, and consistent. However, even if a theory of construction gives us all that, something important is missing if it doesn't yield judgments that accord with a community's sense of justice,.

And even this criteria isn't decisive because we need to acknowledge that in a large political community there will rarely be homogenous values and conceptions. If we always favor the majority's values and conceptions then we risk subverting the very purpose of many rights clauses--to protect minorities from the tyranny of the majority. But if we always favor minority views then the justice system can fail to represent the values, beliefs, and preferences of the majority--which is also a problem. Threading the needle in a principled way is no easy task.

Next time a constitutional issue makes the front page or your favorite podcast, take a moment to reflect on these questions in the context of the issue. Hopefully, it will allow you to appreciate the complexity that often isn't captured by today's media...but is if you take a philosophy class!

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