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On Antonin Scalia and the Problems With Originalism

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“It is the appealing but ultimately confusing conflation of textualism with Constitutional conservatism, of facts and norms, which gives textualism its ideological power.”

I believe the late Supreme Court Justice Antonin Scalia’s textualist approach to jurisprudential interpretation to be the strongest iteration of the originalist position yet conceived.  No small part of this is due to his nearly 30 years sitting on America’s highest court, and the voluminous decisions that bear Justice Scalia’s indelible stamp. Indeed, he is one of the most influential jurists of his generation; as testified to by the countless articles, some passionately admiring while others borderline derisive, published in the wake of his passing in early 2016.

While his juridical decisions constitute a living example of Justice Scalia’s textualist approach, it is made most explicit in his admirably concise and articulate essay “Common Law Courts in the Civil Law System” presented, alongside rebuttals and commentary, in A Matter of Interpretation: Federal Courts and the Law. Justice Scalia notes that there is a notable gap in American legal scholarship; namely, a settled account of how Judges are supposed interpret  the law. This is both unfortunate and dangerous given the important role that judges play in contemporary liberal democracies as interpreters of the common law.

Notably, Justice Scalia claims to be in favor of judicial review as a “desirable limitation upon popular democracy.” However, he is deeply concerned about the attitude judges take when engaged in this essential task. Most particularly, Justice Scalia takes issues with those judges who believe it is their responsibility to develop an “evolving common law” in line with a more general approach that takes the Constitution to be “living.” This testifies to the need to resolve such controversies and develop a genuine “science” of judicial (specifically statutory) interpretation if such a thing is possible.

He then goes on to observe that most scholars who have set themselves the task of developing such a science have relied on looking at the intent of the legislature when deliberating on a bill. To avoid the invariably subjectivist tendencies that might flow from such an interpretive practice, these scholars looked less at what a specific legislator might have intended and more at the meaning which a subject is authorized to understand based on the specific semantic connotations of the law. But Justice Scalia rejected this approach as still overly subjectivist. When one asks not what a legislature meant but what they intended to say, too much confusion arises which enables judges leeway to ascribe their own interpretations to the law in question.

For instance, in the (in)famous Holy Trinity decision of 1892 the Court, unable to proceed using express materials, he looked at the “unexpressed” legislative intent of the legislature to create a new class of individuals exempt from a statute prohibiting aliens from entering the United States to perform labor.

On Textualist Originalism

Justice Scalia argues that judges should look at what the words of a law “objectively” meant at the time it was passed.  But the possibility of making such a determination depends on Justice Scalia’s beliefs about semantic determinancy. He concedes that there may be room for differing interpretations about what the objective meaning of a word might be, but that there are clear limitations to such indeterminancy.  In a key passage on page 21 of “Common Law Courts in the Civil Justice System”Justice Scalia maintains that:

“…While the good textualist is not a literalist, neither is he a nihilist.  Words do have a limited range of meaning, and no interpretation beyond that range is permissible…To say otherwise is to abandon textualism, and to render democratically adopted texts mere springboards for judicial lawmaking.”

In much of the remaining essay he proceeds to criticize constructivists, who maintain that there is are a set of logical rules that allow good legal reasoners to literally “construct” the proper meaning of a law by relying on canons and presumptions, such as legislative debates that illustrate the intent of lawmakers.  Justice Scalia regards this as a waste of time, since many judges will find evidence that will pull them in different interpretive directions. Instead, one should determine the objective meaning of words by looking at the contexts, both historical and semantic, which indicate how the words were used at the time the law was passed.  In this way, judges can (most often) arrive at an unobjectionable answer.

There is also a notable moral dimension to Justice Scalia’s arguments.  He indicates that adopting an evolutionary vision of the Constitution, most notably the Bill of Rights, misunderstands what these documents were meant to achieve. They were adopted because the Founders were “skeptical” that evolving standards of decency always meant progress and that societies always mature as opposed to rot.” He does not disagree that there are moments where societies need to evolve, and points out that there are constitutional amending formulas in place for such eventualities. But Justice Scalia fundamentally believes that it should be to democratic majorities, and their representatives, to make such determinations rather than unelected judges.  

By contrast, those who argue for a “living Constitution” are divided amongst themselves over what society should evolve into. Their only agreement is that such decisions shouldn’t be left to the people.  This suggests that an evolutionary approach is not simply undemocratic, but impractical. Finally, he concludes by arguing that these important decisions must be left to the people if the judicial system isn’t to become adherent to these competing political philosophies, which in the long term benefits no one.

The Problems With Textualism

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I believe that Justice Scalia’s argument is wrong on two fronts. The first is that he holds incorrect semantic beliefs about the strict determinancy of language. This implies that, at the epistemological dimension, textualism is unsustainable as an approach to legal interpretation.  It certainly does not reach the level of a strict “science” as he aspires. However, in some respects I believe that his semantic claims are irrelevant to the appeal of Justice Scalia’s approach. Ultimately, I believe he argues for textualism because Justice Scalia holds to a set of considered moral beliefs about how law should be interpreted by judges who also should play a certain role in a liberal democracy. Given that, Justice Scalia’s textualism is not a scientific or objective argument, but rather predicated on a considered set of moral judgements.  I will proceed to indicate why I believe that Justice Scalia’s conception of democracy is ultimately inadequate. Instead, I believe we should understand democratic rights as flowing from human dignity, and interpret the law along those lines.

I shall first consider Justice Scalia’s semantic argument.  As indicated above, he believes that, while words are open to interpretation, the range is considerably more limited than some believe. In particular, the socio-historical context when a statement was made can provide (often) decisive indications on the meaning a word had at any given time. The role of an interpreter is therefore to look for this objective meaning by analyzing the socio-historical contexts that provided a more general semantic framework which determines the linguistic meaning of a given statement.

This seems at first to be a commonsensical view.  Unfortunately, meaning is not so simple. Indeed, one can question how deeply Justice Scalia thought about this question given that throughout his essay he references, even on issues related to semantics, are exclusively legal scholars. He does not refer to a single philosopher of language, specialist in hermeneutics, or linguist to validate his theory of semantic meaning.

Indeed, the only justification he gives for this theory is an example pulled from Smith v United States where the defendant offered to give an unloaded gun in return for cocaine, and was subsequently charged with using a firearm in relation to drug trafficking. Justice Scalia argues that this was foolish since the phrase uses a gun should have “fairly connoted use of a gun for what guns are normally used for, as a weapon.  As I put it in my dissent, when you ask someone, “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway. While I agree with Justice Scalia’s legal argument, such appeals to singular examples do not get us anywhere at all in arguing for something as complex as a theory of meaning.

Notably, the unusual forcefulness of Justice Scalia’s claims in the absence of strong intellectual evidence was noted by Ronald Dworkin, who contributed a critical essay to A Matter of Interpretation.  Dworkin’s tongue was no doubt firmly in cheek when he noted that “Justice Scalia has managed to give two lectures about meaning with no reference to Derrida or Gadamer or even the hermeneutic circle…” While slightly pretentious, this does give one pause when asking about the truth of Justice Scalia’s semantic arguments.

Curiously, Justice Scalia’s position on language inverts the arguments of post-modern theories of language. Both Justice Scalia and post-modern theorists believe that socio-historical contexts determine the meaning of statements in a given semantic situation.  But where the post-modernist believes that a reflective look at history indicates that the belief in the objectivity of semantics is false given the complex knowledge/power structures which falsely determine meaning both in particular situations and generally, Justice Scalia simply takes objectivity as a given. Ironically, he ignores Madison’s own advice on this topic where in Federalist 37 where, after arguing for qualified skepticism about knowledge the Founding Father discusses the ambiguity of words.

“Besides the obscurity arising from the complexity of objects and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each others adds a fresh embarrassment….But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.”

Madison says clearly what Justice Scalia tries to avoid; that the determinate meaning of words is often up for grabs depending on what Wittgenstein called the language games being played in each semantic situation.  There is no way to objectively pin down the meaning of a word by looking at the socio-historical contexts because, extended consistently, a context dependent theory of semantic meaning reveals an indefinite plurality of possible ways even simple “positive” words can be used.  This is even truer of non-positive words, for instance those which express general principles ala the Fourteenth Amendment which guarantees all citizens “equal protection of the law.” Indeed, if one takes the approach of universal grammar, and its claims about semantic novelty, seriously one can claim that there are an indefinite and growing number of ways we deploy words. Language, after all, involves the “infinite use of finite means.”

This is not to say that indeterminancy, and therefore ambiguity, applies in all legal circumstances.  Indeed, as Lawrence Tribe observed it in his own commentary on Justice Scalia’s essay, there are some circumstances in which the range of possible interpretations is limited by the comparative straight forwardness of a legal provision which renders the range of possible interpretations by legal officials, who play a limited range of language games, fairly limited.

For instance, Article I Sec 3 of the Constitution, which indicates that the “Senate of the United States shall be composed of two Senators from each States…” is not particularly open to radical interpretation.  This will likely be the case in many legal situations where the positive character of the law, or its settled history in the jurisprudence, render decisions fairly clear. But it is certainly not the situation in “hard cases” where debates about the semantic meaning of law belie deeper moral disputes about the proper principles to be applied.

“It is the appealing but ultimately confusing conflation of textualism with Constitutional conservatism, of facts and norms, which gives textualism its ideological power.”

I believe this moral position lies at the heart of Justice Scalia’s position.  While he presents his “science” of textualism as an objective way of engaging in legal interpretation, at the heart of his concerns is the belief that a society adopts a constitution because it is “skeptical that evolving standards of decency always mark progress and that societies mature as opposed to rot.”

Without this moral belief, there might well be little of interest in his position.  It is the appealing but ultimately confusing conflation of textualism with Constitutional conservatism, of facts and norms, which gives textualism its ideological power. But the connection itself is not made particularly clear by Justice Scalia, who both wants a “science of law” and to calcify Constitutional and legal interpretation to prevent moral rot.  But the two objectives in no way need intersect in the immanent way he conceives. Even if one accepted that the objective meaning of words could be pinned down, there is no reason why that should be of any intrinsic moral interest. For instance, it in no way would overcome the central claim of sophisticated positivists such as Hart, who maintained that law and morality were two separate things. Without its Burkean core, textualism would be both wrong at an epistemological level and of little interest from a moral point of view.

Conclusion

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Justice Scalia’s position is of interest because it is, at its heart, a Burkean conception of law given a uniquely American twist. Justice Scalia wants judges to be restrained in their interpretations of law because he believes that is what they should do.  The textualist theory of meaning is simply the epistemologically justification for why it is possible to achieve this successfully. Once it is dropped as implausible, what we are left with is an injunction for judges to defer more often than not to conservative norms.  Progress in morality should be left to the “people” and their representatives.

Judges should practice more restraint in respecting democracy. But where he goes wrong is in considering the function rights are meant to play in this process. As Mills pointed out, a true democracy is one where the opinion of all, not just the majority, is taken into account.  Taking this position seriously would necessitate adopting the realization and amplification of human dignity as the animating ideal of law. This leads to an expansive conception of rights as enabling individuals to increasingly determine the structure of legal and political institutions, and the laws which flow from them.  It means not seeing democratic authority as flowing from a Constitution determined by a minority of men in the past, but a continual process wherein individuals employ their expressive capabilities to define themselves by redefining the socio-historical boundaries within which they exist.

Such a conception, I believe, is closer to realizing the democratic ideal Justice Scalia himself endorses than his own vision of a “dead” Constitution.  It accords central place to the realization of human dignity through adopting an expansive conception of rights, rather than one which sees them as Constitutional bulwarks adopted by men centuries dead against dangerous moral progress.

Matt McManus completed his Ph.D. in socio-legal studies at York University. He is currently Professor of Politics and International Relations at TEC De Monterrey. Matt can be reached at garion9@yorku.ca.

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