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.
Expectation originalism: the Constitution should be interpreted so that it has 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 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.
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 “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.”
So, we have to move on to abstract and principled versus concrete and dated.
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.
By the same token, I expect he would answer Zach’s question about the Second Amendment by saying that the term “arms” is abstract enough to cover more than the muskets that they were familiar with. The founders never saw a machine gun, but their words could well refer to those kinds of weapons just as their words about punishment could apply to electric cattle prods.
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.
Isha asked why Scalia is so confident that we can use history to settle interpretive questions about the Constitution. History is hard, especially when it’s about the past. Izzy added her suspicion that relying on history would allow about as much leeway for judges to inject their own opinions as reliance on intent did in the Holy Trinity case. And she later added that there’s nothing especially democratic about relying on the original meaning of the Constitution. Its authors weren’t democratically elected and, even if they were, they weren’t elected by the people who have to live with the Constitution now, namely us.
I think Strauss will have some good arguments on this theme too. Among other things, he points out that lawyers are trained to analyze laws but they have no expertise in interpreting history. That feeds Isha and Izzy’s points, I think, as it suggests that the reference to history is unlikely to settle disputes and that it is likely that lawyers and judges will interpret history naively.
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.