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 fits Scalia’s arguments about the Eighth Amendment, but is objectionable. 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.
Since everyone claims to be a semantic originalist, the debate comes down to how to understand the abstract principles that are in the Constitution.
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 (as far as any legal document can).
Jamie had doubts. He pointed out that they allowed the Constitution to be amended, potentially overriding anything they had put in it. That doesn’t sound like a way of setting rights in stone.
I added another argument on Scalia’s side. I said that we have trouble imagining how future generations could have better understanding of values, like what cruelty is. Or, at least, I do and I assume the authors of the Constitution are like me. If so, then they wouldn’t have made the Constitution open ended in the way that Dworkin says they did.
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. 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? 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.
I distributed a handout, but I have to confess that it had little to do with what we talked about. It’s just more information about originalism.