Scalia thinks that statutory and constitutional interpretation is, at bottom, history. What did people in a historical period think the statute or constitution meant?
Dworkin thinks it’s moral philosophy. What is the best understanding of terms that express our values, such as “cruel”?
And he thinks he can show this even on Scalia’s own premises. That is, Dworkin thinks he can show that, as a matter of historical fact, the original meaning of the US Constitution is that we must use moral philosophy in order to interpret the Constitution.
Politically, I’m with Dworkin. But I think Scalia wins this argument.
It all comes down to a disagreement about what the principles in the “principled reading” mean.
Dworkin thinks the principles in the “principled reading” are open-ended. For example, the original principled meaning of the 8th Amendment is that we should avoid whatever punishments are in fact cruel. The principle is that cruel punishments are wrong. To comply, we have to discover what cruelty truly is. The Amendment applies to any punishment that is cruel, even if the true meaning of “cruel” is remote from the way it was understood in the late 18th century.
Scalia also thinks the principles in the “principled reading” of the 8th Amendment are open. The Amendment tells us to apply an abstract term, “cruel” rather than giving us a list of forbidden punishments. But Scalia does not think that the original meaning of the Amendment could be as open-ended as Dworkin thinks it is. In particular, he thinks the original meaning of “cruel” is closely tied to practices of the late 18th century. The point of the Bill of Rights, he claims, was to prevent future societies from departing too much from the values of the society that wrote it.
So whose principled reading is the better one? Bernice said that we don’t talk in the open-ended way that Dworkin attributes to the authors of the Constitution. I think she’s right.
If the authors of the Constitution had meant what Dworkin says, they would have had to have thought that a future society could discover that putting criminals to death was cruel. That is, they had to have believed that it was possible that they were making a horrible mistake. What struck them as a just reward for criminal behavior was actually cruel depravity. I think it is unlikely that they believed that.
Why? Well, think about some of the values that you hold dear. Could people in the future discover that you’re deeply mistaken? Could they find that racial discrimination is OK? That infants can be killed if they’re a bother? That physical deformities are funny? That there’s nothing disgusting about … I think we’ll stop there. You get the idea. Future societies may believe these things; they will almost certainly have different values than we do. But it’s very hard for us to see their beliefs as improvements on our own.
I’m not saying that this makes sense. Most of us think that our beliefs are an improvement on those held in the past. We know more than they did about the morality of racial discrimination, the proper treatment of infants and the disabled, and so on. But we’re not willing to concede that the future might hold similar improvements. But why think that moral progress should stop with us? That’s quite unlikely.
But let’s not ask whether our attitudes towards moral progress make sense. My conjecture is that the authors of the Constitution shared those attitudes. And so I think that Bernice is right. None of us leave it open that there could be significant discoveries about what is really cruel. And so it’s unlikely that the original meaning of the 8th Amendment left that open.
But, of course, this is merely conjecture. As both authors insist, the answer depends on historical evidence. And, oddly enough, we don’t have any from these readings.
Those of you who have taken formal logic know that “and” has a special meaning. “A and B” is true if and only if both A and B are true.
So what about the prohibition on cruel and unusual punishment? Is a punishment prohibited only if it is both cruel and unusual? This was Victor’s question.
My answer? Nah.
In informal language, such as our everyday English, “and” sometimes has the same meaning as the formal logical term “or”. “C or D” is true if and only if at least one, and possibly both, of C and D is true.
That’s the way “and” is used in the following sentence: “Men and women are permitted in the smoking lounge” (credit to Prof. Atlas for that one). This does not say that the smoking lounge is open only to the hermaphroditic.
So a punishment is ruled out by the 8th Amendment if it is either cruel or unusual. It doesn’t have to be both to run afoul of the Amendment.