Dworkin and Scalia agree that judges should decide cases involving the US Constitution by considering what it originally means. However they disagree about what that meaning is. For example, Scalia believes it is obvious that the Constitution permits capital punishment. Dworkin denies that it is obvious (and he probably thinks it does not permit capital punishment). (They also disagree about the meaning of the 14th Amendment; it is harder to characterize exactly what they disagree about in that case.)
Dworkin maintains that Scalia could reach his conclusions about the Constitution by one of two routes.
Expectation originalism: the Constitution should be interpreted to have the consequences that its authors expected it to have.
Semantic originalism plus a dated and concrete original meaning: the Constitution should be interpreted according to what its words originally meant and what those words originally meant should be understood in a dated and concrete way.
Dworkin argues that both routes are unattractive, thus blocking Scalia’s paths to reaching conservative conclusions about the Constitution.
Scalia thinks he can escape the box that Dworkin tries to puts him in. He maintains that he is a semantic originalist who treats the original meaning of the Constitution as dated and abstract rather than concrete.
OK, now we have the vocabulary on the table. What does it all mean?
Dworkin begins with a distinction between what he calls expectation originalism and semantic originalism. The difference between the two is best illustrated with the example of the boss who instructs his employee to hire “the best person for the job.” What does the phrase “the best person for the job” mean?
The boss’s expectation was that the employee would hire his nephew. But that is not what the phrase means. The phrase means that the employee should hire the person best qualified to do the job. That might not be the boss’s nephew. It is possible that the employee will do exactly what the boss said to do and that the boss will be surprised by the result.
We could reach Scalia’s conclusions about the Constitution if we interpreted it in the light of the expectations of its authors. But both Dworkin and Scalia agree that so-called “expectation originalism” is a bad way to interpret laws, so we can put this aside.
Scalia opts for semantic originalism. That is, he thinks we should interpret the Constitution according to its original meaning and that the meaning of the Constitution’s words could conflict with what its authors expected. So far, they agree.
They part company over their understanding of what the Constitution was originally understood to mean. Dworkin says that the original meaning of its words is “abstract” and “principled.” He argues that Scalia can reach his conclusions only if the original meaning of the Constitution’s words is “concrete” and “dated.” Scalia thinks the original meaning is “abstract” and “dated”.
So we have two pairs of opposites:
Dworkin treats “abstract” and “principled,” on the one hand, and “concrete” and “dated, on the other hand, as always going together. Scalia argues that they can be split apart.
So, for instance, Scalia thinks that key terms in the Constitution were meant to be abstract. That is why he can ask whether the 8th Amendment’s prohibition on cruel and unusual punishment applies to technologies that were unknown at the time the Constitution was written, such as electric cattle prods. The terms “cruel” and “unusual” are abstract terms that can apply beyond the concrete cases with which people were familiar in the eighteenth century.
Scalia and Dworkin split over exactly what kind of abstraction the Constitution’s words express. Scalia thinks the abstraction must be “dated” while Dworkin thinks it is “principled.” As Scalia understands it, the abstraction has to involve asking what people in the eighteenth century would have thought of, say, electric cattle prods. It is abstract because the question is not “what did they think?” or “what list of punishments did they have in mind?” but rather “what would they have thought if they had considered, say, the use of electric cattle prods as a 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 a kind of historically constrained moral philosophy in order to discover the truth about the abstract values mentioned in the Constitution in order to apply them to novel cases. (I will say more about what “historically constrained” means below.)
In other words, Scalia thinks we have to use history to settle questions about the Constitution’s meaning while Dworkin thinks we have to use philosophy.
Each author thinks he has conclusive reasons for thinking that his views best capture what the Constitution originally meant. That is the part of their exchange that you should focus on.
In a nutshell, Dworkin thinks the authors of the Constitution believed in progress and were keenly aware of the limitations of their own points of view. Scalia thinks they sought to make backsliding away from their values extremely difficult.
We had a terrific discussion that was too rich to reproduce here. A lot of it had to do with these questions about historical progress and backsliding. More precisely, it was about whether the Constitution originally meant to express a progressive view of history and moral progress or whether it reflected concerns about possible moral regress.
There was also a line of thinking that the world has changed too much for originalism to be a sensible view. Nico said something like this at the outset; I think his point was that the world has changed too much for judges now to reliably interpret what people thought then. Helena raised a related point at the end. She conceded that Scalia might have had a point in saying that the original point of the Constitution was to prevent backsliding. But even if they didn’t want us to engage in what they would have seen as backsliding, why should we be bound by their understanding of what is good or bad?
I wanted to include Dworkin’s article “The Moral Reading of the Constitution” because I wanted a clearer alternative to Scalia’s point of view. One thing I wish I had done in class is mention the constraints that Dworkin thinks judges work under. He does not think that the Constitution is an invitation to engage in an open-ended philosophical inquiry into the nature of cruelty or equality. There is some of that, in his opinion, but there are also significant constraints on how that inquiry can go. Roughly, it has to be in line with a historical train of thinking that stretches back to the original Constitution.
Here are his own words.
Two important restraints sharply limit the latitude the moral reading gives to individual judges. First, under that reading constitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. We have no need to decide what they expected to happen, or hoped would happen, in consequence of their having said what they did, for example; their purpose, in that sense, is not part of our study. That is a crucial distinction. We are governed by what our lawmakers said — by the principles they laid down — not by any information we might have about how they themselves would have interpreted those principles or applied them in concrete cases.
Second, and equally important, constitutional interpretation is disciplined, under the moral reading, by the requirement of constitutional integrity. Judges may not read their own convictions into the Constitution. They may not read the abstract moral clauses as expressing any particular moral judgment, no matter how much that judgment appeals to them, unless they find it consistent in principle with the structural design of the Constitution as a whole, and also with the dominant lines of past constitutional interpretation by other judges. They must regard themselves as partners with other officials, past and future, who together elaborate a coherent constitutional morality, and they must take care to see that what they contribute fits with the rest. (I have elsewhere said that judges are like authors jointly creating a chain novel in which each writes a chapter that makes sense as part of the story as a whole.) Even a judge who believes that abstract justice requires economic equality cannot interpret the equal protection clause as making equality of wealth, or collective ownership of productive resources, a constitutional requirement, because that interpretation simply does not fit American history or practice, or the rest of the Constitution. (Dworkin 1996)
The first paragraph covers familiar ground: we have to be governed by what the authors of the Constitution said but not what they expected. The second paragraph, on the requirement of “constitutional integrity” introduces something new that is charmingly illustrated by the metaphor of the chain novel. The idea is that a judge now has to offer an interpretation of the Constitution that makes sense as a continuation of previous judges’ attempts to interpret it. That limits the freedom that judges have to philosophize about the meaning of the abstract phrases of the Constitution.
Dworkin, Ronald. 1996. “The Moral Reading of the Constitution.” New York Review of Books, March. http://www.nybooks.com/articles/archives/1996/mar/21/the-moral-reading-of-the-constitution/.
———. 1997. “Comment.” In A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann, 115–27. Princeton: Princeton University Press.
Scalia, Antonin. 1997. “Response: The Role of United States Federal Courts in Interpreting the Constitution and the Laws.” In A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann, 129–49. Princeton: Princeton University Press.