Scalia vs. Dworkin Notes for March 2–4

Main points

Scalia believes that judges should interpret statutes according to their original meaning. A statute’s original meaning is what the people to whom it was originally addressed would have understood it to be. Scalia’s originalism is thus different from other varieties of originalism, such as those that look to the intentions of a statute’s authors to determine what the statute means.

Scalia argues that this method of interpretation should also be used for fundamental laws, such as the US Constitution. He contends that doing so would rule out many of the decisions based on the idea that the Constitution is a “living” document. His clearest example concerns the Eighth Amendment’s prohibition on cruel and unusual punishments. Since the Amendment was not originally understood to rule out capital punishment, it cannot legitimately be interpreted to rule out this kind of punishment now.

Dworkin maintains that the original meaning of the Constitution was abstract and not meant to be limited to their own expectations.** Dworkin inaccurately writes of original intent, but I think his criticisms can be reworded to apply to Scalia’s position. Instead, the authors of the Constitution meant for each generation to strive to find the truth about, for instance, what punishments are genuinely cruel. If that is what the Constitution originally meant, Scalia’s premises about how to interpret the Constitution do not lead to his conclusions about such matters as capital punishment.

What about judicial decisions?

Both Scalia and Dworkin think that judges should take past court decisions into account in determining what the law is. Neither does much to explain how this fits together with his version of originalism.

Some originalists give little weight to past court decisions. They think that the original meaning of the Constitution should be preferred over court decisions that rely on finding some other meaning. Why give any weight to mistakes, they ask. This sort of position is widely attributed to Justice Thomas. Scalia distances himself from this position by declaring that he is an originalist but “not a nut.”

Unfortunately, our reading does not explain why he holds this position. But you can imagine a rationale. Even if a decision like Brown vs. Board of Education conflicts with the original meaning of the Constitution and its amendments, overturning it would upset the settled understanding of the law. It’s hard to believe that the gains from remaining true to the original meaning of the Constitution would be worth the cost.

That said, I think that Scalia is in an odd position. He appears to be committed to saying that a large number of cases were incorrectly decided. So what if a case like Brown came up now? If we would not have liked the decisions that originalists would have made in the past, why think we would like the ones that they will make in the present or future?

Dworkin thinks that judges should strive to meet an ideal of integrity. That means that their decisions should make the best sense of the history of court decisions leading up to the case they have to decide. I suppose he has to show that this way of being a judge follows from the original meaning of the Constitution but I’m unsure how he would do so. We would have to read one of Dworkin’s constructive works to learn the answer.

Which originalism?

Dworkin tries to present Scalia with a dilemma. He can be an expectation originalist or a semantic originalist. The difference between the two is best illustrated by the “hire the best person for the job” example.

This is a dilemma because it presents Scalia with the choice between an objectionable theory and his favored understanding of the Constitution’s meaning; Dworkin claims that he can’t have both. Expectation originalism fits Scalia’s arguments about the Eighth Amendment, but is objectionable. Semantic originalism is so benign that Dworkin himself claims to subscribe to it. But, Dworkin argues, semantic originalism doesn’t support Scalia’s conclusions about what the Constitution says.

Scalia opts for semantic originalism. He says that the Constitution sets out abstract principles that the courts have to interpret and apply in novel circumstances. These principles were not meant to be limited to what the people at the time knew. For example, he thinks that the Eighth Amendment rules out torture using electrical equipment like cattle prods, bright lights, and recorded music, even though these things were unknown in the eighteenth century.

Which principles?

Since everyone claims to be a semantic originalist, the debate comes down to how to understand the abstract principles that are in the Constitution. Or, as I put it in class, “which principles?”

I wasn’t crazy about the way I listed the alternatives in class. I thought they reflected Scalia’s way of framing the debate too much. So I’m going to try to revise what I said here.

Dworkin thinks the original meaning of the Constitution’s prohibition on cruel and unusual punishment is that the state is forbidden to use whatever punishments are truly cruel. The challenge they left for future generations was to figure out what cruelty genuinely means. It is an invitation to engage in moral philosophy in order to discover the truth about the values mentioned in the Constitution in order to apply them to novel cases.

Scalia thinks the original meaning of the Constitution’s prohibition on cruel and unusual punishment is that the state is forbidden to use whatever punishments people at the time would have recognized as cruel. The challenge for future generations was to figure out what people in the late eighteenth century would have regarded as cruel. It is an invitation to engage in historical investigation to discover what those people’s values were like in order to apply them to novel cases.

Which conclusion?

Dworkin thinks that the original meaning of the Constitution is open-ended. It asks future generations to come up with the best understanding of what phrases like “cruel and unusual” mean. Scalia thinks there are limits to how open-ended it is. In particular, he thinks it’s obvious that the Bill of Rights was meant to address the possibility of backsliding. Future generations might have had depraved understandings of what is cruel and the Constitution was written to block them from making the country worse (as far as any legal document can).

Kelly said she thought this was a pretty good point. I agree, though Ryan and Toby did not. I added an observation about moral progress that, if accurate, suggests they put limits on the other end as well: they didn’t mean to leave it open that they might be seriously mistaken about whether their own behavior was cruel.

Why? Because we all have trouble imagining that. Or, at least, I do and I assume the authors of the Constitution are like me. What follows is more a description than an argument. If you find this description applies to your way of thinking, chances are you will agree with me. If not, you probably won’t. But I’m going to confess up front that I don’t have a way of showing that you have to agree with me. So, with that in mind, here we go.

I have an asymmetrical attitude towards the future compared with the past. I think we have discovered things about morality that previous generations didn’t know or appreciate. But I resist the thought that future generations might make similar discoveries about us, namely, that we regularly do things that are, in fact, morally reprehensible.†† This is not the way we think about knowledge of the natural world, by the way. I assume that the authors of the Constitution were like me in this regard: they didn’t take seriously the possibility that their practices might be cruel. As Sean put it, if they did, they wouldn’t have those practices. So it is implausible to think that whatever they meant by “cruel and unusual” would lead to that conclusion.

So, it seems to me, Scalia is right that the original meaning of the Constitution will be limited in important ways. Of course, it is also open in many ways. We really do have to think about how to apply the phrase “cruel and unusual.” I’m only saying that I very much doubt that our applications could be both consistent with the original meaning of the phrase and sharply at odds with the practices of the time.

But why should we limit ourselves to an eighteenth century constitution, Ben implicitly asked? Good question. If you’re asking it, perhaps you think it was a mistake of Dworkin to grant Scalia’s premise that we should interpret the Constitution according to its original meaning.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted March 4, 2009.
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