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.
Dworkin thinks Scalia has to choose between an objectionable theory and his favored understanding of the Constitution’s meaning. Expectation originalism does not fit Scalia’s claims about statutory interpretation and would yield what Scalia regarded as the wrong answer in the Holy Trinity case. But semantic originalism doesn’t support Scalia’s conclusions about what the Constitution says. So Scalia faces a dilemma: he has to choose between the proper approach to cases like Holy Trinity and his opinions about the Constitution. The latter require “expectation” originalism while the former require “semantic” originalism.
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.
Since everyone claims to be a semantic originalist, the debate comes down to how to understand the abstract principles that are in the Constitution. We discussed this through a specific example: their disagreement about the Eighth Amendment’s prohibition on cruel and unusual punishment
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.
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.
Of course, there’s only so much a law can do to block social change. And as Bogdan noted, the Constitution itself allows amendments, so anything can be overturned.
One thing that came out in our discussion is that what a linguistic utterance means generally has at least something to do with what the speaker intended to say. Scalia himself accepted the point near the beginning of his reply to Dworkin’s comments. So what happens to the vaunted distinction between original intent and original meaning?
It’s probably easiest to keep a grip on the distinction Scalia has in mind by thinking about how a judge would go about deciding what a particular law means. A judge who was concerned with the legislature’s intent would look at information about the legislature’s decisions: biographies of legislators, legislative history, and so on. A judge who was concerned with the meaning of the statute would engaged in a much broader historical enquiry to see how the law would have been understood by people at the time.
Sydney made an important point. If legal interpretation is going to involve historical investigation, we have to be aware of the fact that our historical evidence may well be systematically biased. For example, it’s going to reflect the views of rich and powerful people who wrote their opinions down in places where they would be saved.
Historians have ways of trying to address this. But if they aren’t adequate for legal purposes, that’s a significant problem.