Philosophy of Law Fall 2019

Dworkin vs. Scalia

Overview

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, while he does not say this, he probably thinks it does not permit capital punishment.

Dworkin maintains that Scalia could reach his conclusions about the Constitution by one of two routes.

  1. Expectation originalism: the Constitution should be interpreted so that it has the consequences that its authors expected it to have.

  2. 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 and thereby hopes to block Scalia from 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 dated and concrete.

Expectation and semantic originalism

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 “hire the best person for the job” 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 agrees with Dworkin that semantic originalism is preferable to expectation originalism. That is, he thinks we should interpret the Constitution according to its original meaning and that people could respect the meaning of the Constitution’s words in ways that 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”.

Abstract and principled vs. concrete and dated

We have two pairs of opposites:

  1. abstract vs. concrete
  2. principled vs. dated

Dworkin thinks these groupings go together:

  1. abstract and principled
  2. concrete and dated

Scalia thinks that they can be split apart. Specifically, he thinks that the original meaning of parts of the Constitution is abstract and dated. (The parts are the abstract parts, like the phrases “freedom of speech” or “cruel and unusual punishment.” Other parts, such as the requirement that the President be at least thirty-five years old are obviously concrete by anyone’s lights.)

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. That’s what he means by saying that the interpretation should be “principled.” 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.

Our discussion

Sienna asked whether Scalia was committed to treating the authors of the Constitution, sometimes called the “Founders” or “Founding Fathers,” as if they were moral paragons whose wisdom exceeds our own.

That’s certainly one reason why you might want to pay attention to the original meaning of the Constitution: the people who wrote it were better than we are! But I don’t think it’s Scalia’s reason. I think his thinking is that using the original meaning is the best way of interpreting the Constitution. I think that Ross said captures his thinking. The Constitution is important because it is the most important part of the American legal system. But it doesn’t follow that its content is perfect or even that it is very good. It would be important for the law even if it’s very bad.

If it’s imperfect it should be changed. But the way to change it, according to Scalia, is the amendment process, not by having the courts alter its meaning.

In some ways, Dworkin sees the Constitution as embedding greater wisdom, by his lights, than Scalia does. As he sees it, the Constitution embodies the truth about what the freedom of speech consists in or what makes punishment cruel and unusual. On his understanding, it’s not just a historical document whose meaning is fixed in its time. Rather, it includes principles whose meaning is not bound to their time.

One other thing we talked about is different views of history. This comes up because Scalia claims that one reason for thinking the Constitution is dated is that the point was to fix certain rights so subsequent generations could not backslide. That requires a dated understanding of what counts as, say, the freedom of speech or cruel and unusual punishment.

If you think that history is always progressive, you won’t see backsliding as a problem. Future generations won’t go backwards, they will always move forwards to greater enlightenment and understanding. I doubt Scalia shares that attitude. If you think abortion is morally wrong, for instance, you would think that history has gone sharply backwards.

Historical constraints on Dworkin’s principles

Meghna asked if Dworkin’s position is that the principles are all a matter of philosophy. Are there any constraints on a “principled” reading of the Constitution?

To do justice to Dworkin’s ideas, we would have to read more of his work than we did. Still, the “Moral Reading of the Constitution” article gives us some guidance.

It shows that 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.

Update on the Eighth Amendment

Today I learned that Scalia at least contemplated the thought that flogging would be permitted under the Eighth Amendment as that was an acceptable punishment in 1789. I should add that it is not clear that he was serious. But, well, it’s unsettling.

It’s relevant because the Supreme Court appears to be ready to hear a significant Eighth Amendment case and there are a few originalists on the Court.

Key concepts

  1. Concrete and dated vs. abstract and principled
  2. How the debate plays out concerning the death penalty
  3. Dworkin’s chain novel metaphor

References

Dworkin, Ronald. 1997. “Comment.” In A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann, 115–27. Princeton: Princeton University Press.

———. 1996. “The Moral Reading of the Constitution.” New York Review of Books, March.

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.