Before the Seventeenth Amendment, United States Senators were not directly chosen by voters, but rather, elected by state legislatures who were in turn directly chosen by voters. The idea was that the legislatures would choose extraordinary gentlemen of some sort, who were virtuous or wise in ways common voters wouldn’t recognize.
The Seventeenth Amendment did away with that, and now we have two relatively similar houses of congress, pretty much just for the heck of it. But with some imagination, we can pretend we still have something like the original Senate, in the Supreme Court – officials not directly elected, but nominated and approved by directly-elected officials – with law degrees from prestigious universities, which may be 21st-century America’s version of “virtuous and wise in ways common voters wouldn’t recognize.”
If that’s how we saw things, then it would be very surprising to see John Roberts, in a 2012 Supreme Court case, decide that the individual mandate of the Affordable Care Act is constitutional. He’s a Republican nominee, and if the Supreme Court were just the modern version of the original Senate, we’d consider him “a Republican.” And it sure seems like a lot of Republicans expected him to vote with the party.
But he didn’t – and not because he actually likes the Affordable Care Act, but because he thought the individual mandate is “constitutional” – whatever that means. We don’t actually see the Supreme Court as another house of Congress; we see it as a group of people who are supposed to honestly interpret the Law rather than write it. And maybe we’re a little surprised at how Roberts voted in this case, because we’re cynical about how principled Supreme Court justices actually are. But those of us who like the decision think he interpreted the Constitution the right way, and those of us who didn’t like the decision say they’re angry because he didn’t interpret the Constitution the right way – not because he voted against the party line.
What does it mean, then, to interpret the Constitution “the right way?” The most famous person with a strong opinion on that topic was the late Antonin Scalia. A Matter of Interpretation is a quick read, including a preface, an essay by Scalia, responses from one historian and three legal scholars, a response-to-the-responses from Scalia, and an afterword, written after Scalia’s death, by another textualist.
Most people who aren’t Scalia call Scalia a “strict constructionist”, but Scalia called himself a “textualist.” What he means by that is supposedly very simple: That the Constitution – and other laws as well – should be interpreted according to the “original public meaning”, which is the meaning the text of the law had at the time the law was passed. The only deviations he allows from this principle are a few concessions to pragmatism – some weight should be given to precedent, even when precedent is wrong, for the sake of stability and consistency; also, it’s okay for the courts to correct obvious drafting errors.
Although Scalia is a “conservative” in many ways, his legal theory is actually a radical departure from American legal tradition, which has its roots in the common law. Common law is either something you already understand, or an extremely complicated and sometimes counterintuitive topic that would require pages and pages of explanation. The general idea behind common law is that it is based on judges’ interpretation of customary practices, but Scalia would tell you that nowadays it’s effectively “law written by judges.” I’ll stitch together a Frankenstein quote because Scalia is not an especially concise writer: “Perhaps in the very infancy of Anglo-Saxon law it could have been thought that the courts were mere expositors of generally accepted social practices…(b)ut from an early time…any equivalence between custom and common law had ceased to exist.”
“Common law” is usually contrasted with “civil law”, which is the name for legal systems – common throughout continental Europe and Latin America – based on gathering up all the laws that have been passed and putting them in a big book somewhere, instead of relying on judicial interpretations. Scalia believed that civil law is more democratic – or at least, more compatible with democracy – than common law, because legislators are generally elected and judges generally aren’t. And he believed that the importance of democratic legal interpretation has become more and more important over time, as more and more of the law is based on statute (written legislation) rather than custom.
But there are limits to Scalia, Champion of Radical Democracy. The most purely democratic constitutional theory would be “never declare anything unconstitutional.” And this is not Scalia’s position – you may remember a little case called Citizens United, which had an outcome that the vast majority of voters weren’t pleased with. Scalia has also consistently defended free speech for persons-who-are-actually-people, which similarly might not seem compatible with “judicial restraint.”
This is where Scalia’s conservatism kicks in. It’s not really made clear until the last line of Scalia’s response-to-the-responses, but he views the Bill of Rights as loss-aversive – if you want to use the jargon of behavioral economics – or mostly as a protection against decline – if you want to use grand historical rhetoric. “We, the drafters of the constitution, do hereby declare that however bad things may get, the individual-rights situation in this country shall get no worse than it was at the time when this constitution was adopted.”
Which is why I think the various internal inconsistencies people have pointed to in Scalia’s judicial theories don’t matter so much. Scalia bases his theory on a specific view of what a constitution is for and how separation of powers should work in a democracy, and the most important question is not whether his theory is consistent with itself, but whether his theory supports his vision of constitutional democracy, and whether that vision is realistic.
The first response to Scalia comes from historian Gordon S. Wood, best known for being the guy who gets regurgitated in Good Will Hunting. For purposes of a reasonably short review, the most important passage in his response is this: “During the 1780s…(m)any Americans now concluded that their state legislatures not only were incapable of simplifying and codifying the law but, even more alarming, had become the main source of tyranny and injustice in the society. At the same time more and more Americans began looking to the once-feared judiciary as the principal means of restraining these wild and rampaging popular legislatures.”
Wood doesn’t give a whole lot of evidence to back this claim, but in the present day we can easily verify that the public trusts the judicial branch of government more the legislative branch. And so it’s hard to say which is more democratic – to empower the officials people vote for, or officials they actually like. If constitutional democracy is a balancing act between democracy and individual rights, it’s not clear why the exact balance Scalia strikes is better than any other.
The next response is from Laurence Tribe, one of the most well-known scholars of the United States constitution. Now, I’m going to have to admit to some prejudice against Tribe – I read his book On Reading the Constitution many years ago and I remember finding him pretentious, condescending, disingenuous, and vague. So it’s not terribly surprising that I found his response to Scalia pretentious, condescending, disingenuous, and vague. I read his chapter twice in hopes that doing so will make me treat him more fairly.
Tribe claims to be faithful to the text – “nothing irreconcilable with the text can properly be considered part of the Constitution” – but his definition of “reconcilable” is extremely broad. He believes that different parts of the constitution’s text should be read at different levels of abstraction, so the rule that the president must be at least 35 years old should be read narrowly and literally, but the First Amendment should be read “aspirationally” – in terms of broad principles that extend far beyond what’s spelled out in the text of the amendment. Tribe refers to constitutional law as a “historic voyage of interpretation.”
Tribe offers no general rules – in this piece anyway – for how to steer the ship on that historic voyage. Does that mean he buys into the “Supreme Court as old-school Senate” model I described in the introduction – that judges have nearly unlimited freedom to decide policy so long as they can “reconcile” it with what they believe to be the spirit of the Constitution’s text? I think probably not. Tribe has written a textbook called American Constitutional Law, and as I understand, it attempts to codify constitutional precedents – especially from the Warren and Burger courts of the 50s, 60s, and 70s – into general principles. I suspect that it is these principles that Tribe believes justices should use to interpret the constitution,.
This is basically the “common law” approach to constitutional interpretation that Scalia criticizes, and so far as I know, Tribe has never answered those criticisms in a way that anyone other than Tribe – even his ideological allies – thinks is satisfactory.
The third response is by Mary Ann Glendon, a scholar of comparative law. She is a conservative, and probably agrees with Scalia on many issues, but she points out that the “civil law” systems Scalia admires do not actually follow the “textualist” approach he recommends. In fact, during the modern era in which most laws are explicit statutes passed by legislatures, common law and civil law systems have converged somewhat.
So the German supreme court – which would of course have a name like “Bundesverfassungsgericht” – governs a system of civil law, but nevertheless relies on precedent as one of its tools. Glendon says Germans have been far more systematic about their approach to constitutional interpretation than Americans have. Their “classical approach” has four elements:
- Textual interpretation, which means pretty much what Scalia means.
- Systematic interpretation, which aims for coherence and internal consistency within and among legal texts.
- Historical interpretation, which corresponds to “original intent.”
- Teleological interpretation, which relies on evolution and precedent.
I would be a fool to think that I could summarize German constitutional interpretation here. Unsurprisingly, it’s complex system that follows inscrutable-to-me principles such as “practical concordance”, as defined by some guy with the extremely Teutonic name “Konrad Hesse.” The moral of story is twofold: First, that our silly American tradition of constitutional interpretation is a total amateur hour; and second, that even civil law systems don’t actually follow textualism in its pure form.
The final response is from Ronald Dworkin; it seems to me that his is the most widely-respected criticism of Scalia’s theory – Akhil Reed Amar cites it quite a bit in the preface – and it’s the one that I find most convincing. While it’s not clear whether Dworkin identifies as a “textualist”, he shares with Scalia the belief that constitutional interpretation should genuinely be a good-faith matter of interpreting the Constitution, not constructing it. The difference is that instead of Scalia’s standard of “original public meaning”, he thinks that we should interpret the constitution based on modern understanding of the sometimes-abstract rules described in the text.
The difference can be illustrated by asking whether the death penalty is a cruel or unusual form of punishment, forbidden by the Eight Amendment. It is clear that those who wrote the Bill of Rights did not think the death penalty was off the table, because other language in the Bill of Rights – the Fifth Amendment in particular – implies that you can execute someone if you jump through the right legal hoops (“capital or otherwise infamous crimes”, “deprived of life, liberty, or property without due process.”). Now, Scalia doesn’t actually care so much about the intent of those who wrote the Fifth and Eighth Amendments; it’s more that the language of the Fifth Amendment is one piece of evidence that the “original public meaning” of the phrase “cruel and unusual punishment” didn’t include the death penalty.
But Dworkin points out that the constitutional text doesn’t specify whether it forbids “things that we, the drafters, consider cruel or unusual” or “things that are cruel or unusual based on an moral principles that future generations might understand better than we do.” Neither of these is stricter or more literal than the other, and if anything, using the current understanding of what “cruel and unusual” means is more democratic than using the understanding of people who are hundreds of years dead. Furthermore, the “original public meaning” of “cruel and unusual” may itself include the possibly that definition of “cruel and unusual” evolves, in which case the current meaning literally is the original meaning.And while Scalia says that using the current meaning gives judges too much discretion, it’s not clear why that should be the case – if anything, there is every reason to believe that judges will understand the modern “public meaning” of “cruel and unusual”more clearly than they understand the public meaning of 1788, and thus have less discretion to impose their own views.
(Note that the majority of Americans clearly do not view the death penalty as “cruel and unusual”, according to the polling data cited above, so if Dworkin does think it’s cruel and unusual, that may be evidence that he’s substituting his own views for “current public meaning.”)
Scalia’s final paragraph in this book is, I think, his best response to Dworkin’s argument. He points out that the rights the Supreme Court has been most likely to protect in recent years – for example, the rights of homosexuals – are quite popular with the public. The Warren Court was the only era when the courts made a large number of rulings that protected unpopular rights, such as those of prisoners and criminal defendants. It may be that the achievements of the Warren Court were a one-time opportunity; the courts sort of “got the drop” on an unprepared public, and since then, care has been taken to prevent judges who would make unpopular rulings from sitting on the Supreme Court.
This argument recasts one problem of constitutional democracy – how should we balance majority rule against minority rights – as an empirical question – how can we balance majority rule against minority rights? I’m not quite sure I’m reading this right, but Scalia seems to think that the only way to do that is to is for judges to reach outside the present era to some fixed reference point – say, 1788 – when rights that are now unpopular were more widely respected. Otherwise, the “current public meaning” of the law will almost inevitably align with public opinion, leaving few protections for unpopular minorities.
And that seems pretty convincing in the case of the death penalty – if the public considered the death penalty “cruel” or “unusual”, they wouldn’t elect legislators that back the death penalty. The only way a “living constitutionalist” could fight the public will on the death penalty is if they relied instead on their personal beliefs about what sorts of punishments are “cruel and unusual.”
I think this is the most genuinely troubling argument against “living constitutionalism” that I have ever encountered. But I don’t think it’s decisive, for a number of reasons:
- A large portion of constitutional law isn’t about striking down laws passed by the federal government, but rather, striking down laws passed by state governments, using the Fourteenth Amendment. To be (perhaps excessively) blunt, the Fourteenth Amendment makes sure the Southern states don’t do things the rest of the country would consider barbaric. It’s entirely possible to imagine a situation in which the public of some states is in favor of the death penalty, but the current public meaning of “cruel and unusual” in the country as a whole forbids it. Arguably, this has happened already in limited ways, in cases such as Ford v. Wainright which forbid the death penalty for the legally insane.
- Maybe we don’t want to use the current public meaning, but something like “current meaning with extra legitimacy given to certain kinds of experts.” For example, the public might support the death penalty without knowing very much about how it is carried out in practice, but experts who study it might determine that – regardless of whether it’s right or wrong in principle – the system is a shambles and produces arbitrary results. Arguably, this is what happened in Furman v. Georgia.
- You could simply meet the majoritarian problem head-on and base your entire constitutional theory around it, which is pretty much what John Ely does. Ely’s theory resembles Tribe’s in that he thinks we should base rulings on the “spirit of the constitution”, but unlike Tribe, he’s very specific about what he thinks the “spirit of the constitution” is: He thinks the constitution should guarantee majority rule, while also preventing majorities from imposing rules on minorities that the majorities themselves would be unwilling to endure. Even if judges don’t make Ely’s theory their one true guiding light, they could at least use it as one of several principles guiding interpretation, and this might help them resist the pressures of public opinion and protect unpopular rights.
- You could reach outside the present era to some other fixed reference point. I’d argue this is what Laurence Tribe does, in practice – he treats the Warren Court rulings, and some subequent cases like Roe v. Wade, as if they were a one-time addition to the Bill of Rights. The arbitrariness of this solution is obvious, but I’ll admit it seems to be serving the interests of modern liberalism reasonably well. The only caveat is that the Warren Court rulings will probably become less and less influential as that time period fades into the past.
- Finally, you could go the full “Supreme Court as old-school Senate” route and just say that people who go to law school and get confirmed to the Supreme Court are especially wise, or for some other reason are likely to act as a good check on the tyranny of the majority.
But there may be a practical problem that makes all constitutional theories difficult to implement. While seeking out writings related to this book, I found this article by Eric Posner. Now, Eric Posner is someone that I disagree with almost all the time, but I found this particular argument provocative: That in some sense we will never know ahead of time what a potential justice’s legal philosophy, because no nominee with any sense would dare reveal what they actually believe to the Senate.
His proposed solution – that justices should be constitutional minimalists who rarely strike down legislation – does not seem like it actually solves the problem. Maybe if we could turn back time and make all judges minimalists, we could avoid today’s dilemma, but a vocal minimalist would have no easier time getting through modern Senate confirmations than any other nominee who spelled out their philosophy in detail. For example, a truly minimalist judge would surely overturn Roe v. Wade, which hardly makes them a safe choice for Senate hearings.
Viewed from this angle, Scalia’s philosophy of loss aversion seems like the only kind of philosophy that a Senate would approve – whether it be a conservative Senate, determined to approve a textualist nominee who will preserve rights as of 1788, or a liberal Senate, determined to approve a Tribe-influenced nominee who will preserve rights, secured by the Warren and Burger courts, as of 1986.