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Justice Scalia and Originalism in Constitutional Interpretation

 
 
Reply Mon 12 Mar, 2012 01:04 pm
Quote:
Justice Scalia Goes to Wesleyan
(David Lat, AboveTheLaw.com, March 9, 2012)

Last night, Justice Antonin Scalia delivered the prestigious Hugo Black Lecture at Wesleyan University, speaking in the university’s Memorial Chapel before a packed house. Wesleyan is an uber-liberal school — the basis for the movie PCU, about a very Politically Correct University — and Justice Scalia’s visit was preceded by campus protests (dubbed “Occupy Scalia”). But I was pleasantly surprised by how respectful and appreciative the audience was of Justice Scalia’s deeply thoughtful and persuasive remarks; the protests during his speech were minor and clustered near the end.

I trekked up to Middletown from New York City to attend the lecture. What did Justice Scalia have to say? And what did the protests entail?

The full title of the Hugo Black Lecture is the “Hugo L. Black Lecture on Freedom of Expression.” Fittingly enough, Justice Scalia’s speech consisted of a defense of originalism using the First Amendment as a case study. (Since Above the Law readers are primarily lawyers and law students, I’m assuming familiarity with originalism, Justice Scalia’s preferred method of constitutional interpretation.)

********************************************************************

Justice Scalia maintained, consistent with his originalist philosophy, that “the freedom of speech, or of the press” must be construed in light of how these terms were understood in 1791, when the First Amendment was adopted. He noted the presence of the definite article — “the freedom of speech,” not plain old “freedom of speech” — and argued that the Amendment should be understood as protecting the free-speech rights enjoyed by Englishmen at the time.

Under Justice Scalia’s originalist interpretation of the First Amendment, New York Times v. Sullivan, in which the Supreme Court held that a publisher can’t be held liable for defamation of a public figure absent “actual malice” (i.e., knowledge of a statement’s falsity or reckless disregard as to falsity), was wrongly decided. Back in 1791, nobody thought that “the freedom of speech” encompassed the right to libel public figures. We wound up with this “actual malice” standard, according to Justice Scalia, essentially because the Warren Court thought it would be good for democracy and good as a matter of public policy.

Justice Scalia highlighted his divergence on this issue from Justice Hugo Black, the namesake of the lecture series, who was much more of an absolutist with respect to the First Amendment. Justice Black’s view could be roughly summarized as saying, “‘make no law… abridging the freedom of speech’ means exactly that, namely, ‘make no law… abridging the freedom of speech.’” Justice Black, in other words, did not interpret “the freedom of speech” in the history-based way that Justice Scalia does. (Justice Scalia faulted what he described as the weakness and thin sourcing of Justice Black’s separate concurrence in Sullivan.)

********************************************************************

-- Originalism protects flexibility in policy because it lets the people decide what policies they favor by exercising their voting rights at the ballot box. The “living Constitution” school, on the other hand, takes many issues — e.g, abortion, through Roe v. Wade — and removes them from the normal political process, instead enshrining them in constitutional law. So “don’t love the living Constitution because it will bring you flexibility and choice; it will bring you rigidity.”

-- Some critics of originalism question how much it relies on history, noting that lawyers aren’t historians. Justice Scalia had several responses: (1) historical inquiry is inevitable in construing the Constitution (e.g., do you know what a “Letter of Marque and Reprisal” is); (2) lawyers can turn to and cite the work of expert historians in going about constitutional analysis; and (3) there’s no reason to think that lawyers are better at picking policy outcomes and deciding “what ought to be” than they are at historical analysis.

-- Originalism may not be perfect, but it doesn’t have to be; it just has to be better than the other options. Justice Scalia noted that the alternative modes of interpretation “don’t even have a name, which should give you pause.” (I am in favor of calling non-originalist approaches “The School of the Living, Breathing, Sushi-Eating, Stairmastering Constitution.”)

-- Liberals should actually like originalism because of how it constrains judges: “Show Scalia the original meaning, and he will be prevented from imposing his nasty conservative views on the people!”

*********************************************************************

Then Justice Scalia took audience questions. The first query concerned Bush v. Gore, and he repeated his usual mantra: “Get over it!” He did add, however, that “on the principal issue [of whether the Equal Protection Clause was violated], the vote was 7-2 — not even close.” The vote was 5-4 on the issue of remedy, which he described as “whether to give these people [a few more] weeks to sort out this mess” — during which the government would essentially be paralyzed, trapped in a state of limbo, unable to transition to the next presidential administration.

“The majority said, ‘Basta!’ And by and large, the county agreed.” (The “Basta!” line, which I hadn’t heard before, was met with a surprising amount of laughter from the Wesleyan crowd.)

With the effect of money on politics being such a hot topic these days, of course someone asked about campaign finance reform and free speech. Justice Scalia simply stated that there’s no historical indication that free speech rights should be denied to associations of people, which is essentially what corporations are. He added that Citizens United, far from upsetting the proverbial apple cart, simply overruled a six-year-old decision that had overruled Buckley v. Valeo, a precedent of much longer standing.

One questioner asked about “judicial restraint.” Justice Scalia’s response reminded me of what some liberals say about “judicial activism”: “It’s a conclusory term.” He argued that notions of “judicial restraint” shouldn’t stop the courts from doing what they’re supposed to be doing, namely, striking down unconstitutional laws and upholding constitutional ones. “The question is whether the statute deserves to be struck down,” he said, not whether striking it down reflects judicial activism or judicial restraint. He reminded the audience that “there’s such a thing as an activist Congress as well as an activist Court,” so deferring to the enactments of Congress isn’t always the proper course for judges.

A student asked Justice Scalia for more examples of cases where his originalist philosophy led him to vote against his own policy preferences. The justice cited many of his rulings in criminal law, which have advanced the rights of defendants. He joked that even though he’s “a law-and-order conservative” in his personal views, he should be “a pinup for the criminal defense bar!”

Specifically, Justice Scalia touted his resurrection of the Confrontation Clause of the Sixth Amendment, referring to Crawford v. Washington as “the opinion I’m most proud of.” He also mentioned BMW v. Gore. The Supreme Court’s placing limits on punitive damages was welcomed by many pro-business conservatives, but Justice Scalia dissented in that case, arguing that the Constitution does not speak to this issue.
 
rosborne979
 
  1  
Reply Mon 12 Mar, 2012 01:37 pm
@wandeljw,
Justice Scalia is very smart, even though I disagree with a lot of his decisions.

They should have asked him about his views on Creationism in Science Classes. As good as he is with legal president, he appears to be ignorant of basic biological science, so that would be a good place to start picking apart some of the methodology that he uses to make decisions (in particular cases).
wandeljw
 
  1  
Reply Mon 12 Mar, 2012 03:35 pm
From the above story on Scalia's lecture:
Quote:
Justice Scalia maintained, consistent with his originalist philosophy, that “the freedom of speech, or of the press” must be construed in light of how these terms were understood in 1791, when the First Amendment was adopted.


In 1791 there was no understanding concerning the internet. Does this mean that the First Amendment can not be used to decide cases involving the internet?
Irishk
 
  1  
Reply Mon 12 Mar, 2012 05:14 pm
@wandeljw,
I think there already have been such cases. Reno v. ACLU resulted in a 9-0 ruling.
0 Replies
 
rosborne979
 
  1  
Reply Mon 12 Mar, 2012 05:51 pm
@wandeljw,
wandeljw wrote:

From the above story on Scalia's lecture:
Quote:
Justice Scalia maintained, consistent with his originalist philosophy, that “the freedom of speech, or of the press” must be construed in light of how these terms were understood in 1791, when the First Amendment was adopted.


In 1791 there was no understanding concerning the internet. Does this mean that the First Amendment can not be used to decide cases involving the internet?

I think what he means is that we have to understand the intent of the First Amendment from their point of view in order to correctly implement it in today's world. The original "intent" of the amendment would therefor not be tied to particular technologies.

I also assume he means that modern judges would try to apply that "intent" to modern situations.
0 Replies
 
OmSigDAVID
 
  1  
Reply Mon 12 Mar, 2012 07:01 pm
@wandeljw,
From the above story on Scalia's lecture:
Quote:
Justice Scalia maintained, consistent with his originalist philosophy, that “the freedom of speech, or of the press” must be construed in light of how these terms were understood in 1791, when the First Amendment was adopted.
wandeljw wrote:
In 1791 there was no understanding concerning the internet.
Does this mean that the First Amendment can not be used to decide cases involving the internet?
No. It means that absence of government control is freedom
and freedom applies to the Internet, as an aspect of free expression.

When the principles of arithmetic were discovered,
HDTVs did not exist, but we can apply those principles now
in COUNTING High Definition Televisions.





David
0 Replies
 
wandeljw
 
  1  
Reply Tue 13 Mar, 2012 11:19 am
Quote:
If Scalia Had His Way
(By JEFFREY ROSEN, Opinion Essay, The New York Times, January 8, 2011)

Constitutional originalism is all the rage these days. In Congress, the new Republican House majority opened the session with a reading of the Constitution and a requirement that every proposed bill cite the specific constitutional authority on which it relies.

And the Supreme Court begins its new session this week with renewed energy on the originalist wing. Justice Antonin Scalia, the court’s leading originalist, has agreed to address the House Tea Party caucus on the separation of powers. He has also delivered speeches recently outlining his original understanding of the Constitution in areas like sex equality and the death penalty.

How would America change if the Scalia originalist vision — embraced by many Tea Party members — were enacted by the Supreme Court? Justice Scalia believes that the Constitution should be interpreted in light of the original understanding of its 18th- and 19th-century framers and ratifiers. That, he has stressed in recent speeches, would change our constitutional universe dramatically.

But he is not proposing a return to segregation and powdered wigs. In a 1989 article called “Originalism: the Lesser Evil,” he called himself a “faint-hearted originalist,” adding that he could not imagine “upholding a statute that imposes the punishment of flogging,” which the constitutional framers approved.

No to flogging, but what next? What would the country look like in an originalist universe? Liberal bloggers often like to set off alarm bells, and in certain cases, the law would become more conservative. But consensus among originalists is rare on any issue, and conservative justices often disagree among themselves about what the founders intended. And in many cases, liberal justices and advocates can argue plausibly that the constitutional text and history point to progressive rather than conservative outcomes.

Conservatives embrace originalism for many reasons, not least because it is supposed to help judges separate their legal conclusions from their personal views. But in practice, the version of originalism embraced by conservative justices often points in a conservative direction.

For starters, Justice Scalia said a return to the founders’ vision means states could impose the death penalty on anyone — including juveniles or the mentally retarded, for example — and there would be no abortion rights or rights of assisted suicide for the terminally ill.

“We don’t have the answer to everything, but by God we have an answer to a lot of stuff,” Justice Scalia said in an interview on originalism in September at the University of California’s Hastings College of the Law.

Justice Scalia also insisted that the equal-protection clause of the 14th Amendment wasn’t intended to apply to discrimination based on sex or sexual orientation, and that the Supreme Court has erred by regulating both. “Nobody ever thought” that the Constitution banned sex discrimination, he said.

Sometimes, originalists agree about the founders’ intentions but disagree about overturning deeply rooted precedents that may clash with those intentions. Since the 1960s, for example, the Supreme Court has banned school prayer.

Drawing on the work of liberal and conservative scholars, Justice Clarence Thomas has argued that those decisions are inconsistent with the intention of the framers of the First Amendment, who wanted to prevent the federal government from interfering with established state churches, rather than requiring a wall of strict separation between church and state.

Justice Scalia doesn’t dispute these historical conclusions, but he said that unlike Justice Thomas, he wasn’t ready to reverse the decisions applying the First Amendment’s restrictions on religion to the states. “I’m not going to rip all that up; it’s water under the dam,” he said in a 1997 speech. “In other words, I am an originalist. I am a textualist. I am not a nut.”

Today, the most heated controversy over originalism centers on health care reform. The justice most likely to strike down the new law is Justice Thomas, who has argued that the framers intended for Congress to have far narrower authority to regulate interstate commerce than the modern court has allowed.

His vision might call into question much of the post-New Deal regulatory state, and for pragmatic reasons, Justice Scalia and other conservatives have so far refused to embrace it. “Part of the problem is that we’ve already come so far from the original understanding that I don’t think we’re going to go back very far on this,” said Michael McConnell of Stanford Law School, a leading conservative constitutional historian.

In addition to disagreeing about the value of previous precedents, the conservative justices disagree among themselves about what the founders would have thought about technologies and institutions that didn’t exist when the Constitution was written.

In a November oral argument about a California law restricting minors from buying violent video games, Justices Scalia and Samuel A. Alito debated whether the ratifiers of the First Amendment would have thought that it protected portrayals of violence.

“What Justice Scalia wants to know is what James Madison thought about video games,” and if “he enjoyed them,” Justice Alito said sarcastically. Justice Scalia shot back, “No, I want to know what James Madison thought about violence.” The dispute will be resolved in the opinion, to be issued later this year.

Even when there’s broad scholarly agreement about original understanding, the conservative justices sometimes ignore it.

In a decision last year holding that the states are bound by the Second Amendment’s right to bear arms, the five-member conservative majority — Justices Scalia, Thomas, Alito and Anthony M. Kennedy as well as Chief Justice John Roberts — ignored the consensus among liberal and conservative scholars that framers of the 14th Amendment intended to apply the Second Amendment to the states not through the “due process” clause but instead through the “privileges or immunities” clause, which the court has long overlooked.

Resurrecting this forgotten clause might lead to greater protection for a range of individual rights. “Recently, originalism has taken some serious hits on the court not because of its opponents,” said Professor McConnell, “but because of its proponents, who manifested a distinct lack of interest in following the original understanding when it became inconvenient.”

For this reason, many liberal scholars have concluded that originalism is more of a rhetorical argument than a consistent, principled approach to constitutional interpretation.

“If you took the originalists at their word,” said David Strauss, a liberal University of Chicago law professor, “you could punish people for criticizing the government, the federal government could discriminate against anyone it wanted to, and there’s a real argument that the interstate highway system is unconstitutional. The federal prison system and criminal law would be in serious question, and forget the Federal Reserve. It would be gone.”

In the end, however, many liberal scholars believe that if the court took seriously the text and history of the entire Constitution — including the 16th Amendment, authorizing the income tax, and the 19th Amendment, which gave women the right to vote — then originalism should just as often lead to liberal as conservative results.

On issues like campaign finance, health care, financial reform and gender discrimination, these scholars say, taking the 20th-century amendments as seriously as those passed in the 18th and 19th centuries would guarantee a constitutional originalism that upheld modern visions of liberty and equality.

“I hope Scalia and Thomas succeed in making their colleagues care more about text and history,” said Douglas Kendall, the president of the Constitutional Accountability Center, which argues that originalism can favor progressive causes. “But if they’re honest in reading and considering these sources, it won’t always yield the results the Tea Party wants.”
0 Replies
 
rosborne979
 
  2  
Reply Tue 13 Mar, 2012 07:46 pm
@wandeljw,
The founders put nine people on the court. That alone implies that they knew the constitution would have to be interpreted, making the interpreters themselves an active part of founding law. It gave life to the document.

I don't think Scalia's argument for "original intent" is a pure argument without recognizing that he doesn't sit alone on the bench, and that was be design.
joefromchicago
 
  2  
Reply Wed 14 Mar, 2012 12:59 pm
Scalia rejects a strawman version of the "living constitution" so that he can support an unworkable version of "original intent" that even the originators of the constitution derided.
Joe Nation
 
  1  
Reply Wed 14 Mar, 2012 01:09 pm
@joefromchicago,
You, Joe, have summed up His Arrogance's condition perfectly in that one sentence.

Joe(bravo)Nation
rosborne979
 
  1  
Reply Thu 15 Mar, 2012 04:40 am
@joefromchicago,
joefromchicago wrote:

Scalia rejects a strawman version of the "living constitution" so that he can support an unworkable version of "original intent" that even the originators of the constitution derided.

Can you add a bit more background to that. I would like to understand this whole subject better.
Thanks,
joefromchicago
 
  3  
Reply Thu 15 Mar, 2012 09:16 am
@rosborne979,
Scalia has, on more than one occasion, described the "living constitution" approach to constitutional interpretation as pretty much an "anything goes" type of interpretation that has no basis in the text and that is informed solely by a judge's policy goals. That's not just a misrepresentation, it's a hypocritical falsehood. Here's why:

(1) The constitution was written so that it could be interpreted according to the tenor of the times -- Chief Justice Marshall, back in 1819, reminded people that "it is a constitution we are expounding." What he meant by that is that the constitution is not a set of statutes -- it outlines a broad framework for the government and, in the bill of rights, for the proper sphere of government in its relations with the citizenry. In other words, the constitution was meant to be interpreted. That's the way it was written, and that's the way the drafters intended it.

(2) Just like the gospel of John, all constitutional interpretation begins with the word. The notion that "liberal" jurists start with a policy goal and then work backwards, bending the meaning of the constitution along the way is (a) not accurate, and (b) something which "conservative" jurists like Scalia could, with equal justification, be accused of doing (see, e.g., Bush v. Gore). Scalia thinks that "liberals" would get the right results if they just adopted the right analysis, whereas, in fact, they just disagree about the results. The analysis, however, is largely the same, and that's because...

(3) Scalia does the exact same thing he accuses his opponents of doing. This "originalist" doesn't think that the state can flog criminals in the public square or execute them for property crimes, even though those penalties existed at the time the eighth amendment's prohibition against "cruel and unusual punishments" was written (Justice Thomas, however, would probably disagree). As Scalia stated in Stanford v. Kentucky:

Quote:
Thus petitioners are left to argue that their punishment is contrary to the "evolving standards of decency that mark the progress of a maturing society," ... They are correct in asserting that this Court has "not confined the prohibition embodied in the Eighth Amendment to `barbarous' methods that were generally outlawed in the 18th century," but instead has interpreted the Amendment "in a flexible and dynamic manner." ... In determining what standards have "evolved," however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole.


"Evolving standards of decency?" Sure sounds like a "living constitution" analysis to me. Likewise, Scalia has not limited the first amendment's protections of "freedom of the press" to the types of media that were available in 1791. Other examples could be cited, but it's clear that Scalia believes in a "living constitution" just as much as everyone else that he criticizes -- it's just that he believes it leads a very different life than they do.
wandeljw
 
  2  
Reply Thu 15 Mar, 2012 09:53 am
"In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce."
--James Madison, The Constitutional Convention, Philadelphia, June 26, 1787
OmSigDAVID
 
  1  
Reply Thu 15 Mar, 2012 10:04 am
@wandeljw,
wandeljw wrote:
"In framing a system which we wish to last for ages,
we should not lose sight of the changes which ages will produce."
--James Madison, The Constitutional Convention, Philadelphia, June 26, 1787
Yes, that applies to changes legitimately accomplished thru the procedure set forth in Article 5.





David
OmSigDAVID
 
  1  
Reply Thu 15 Mar, 2012 10:07 am
@Joe Nation,
Joe Nation wrote:
You, Joe, have summed up His Arrogance's condition perfectly in that one sentence.

Joe(bravo)Nation
I disagree.





David
0 Replies
 
parados
 
  2  
Reply Fri 16 Mar, 2012 07:45 am
@OmSigDAVID,
SO... as a strict constitutionalist, you think the 2nd amendment only refers to muzzle loading arms, correct?

Or are you willing to change the meanings of that part of the Constitution?
OmSigDAVID
 
  1  
Reply Fri 16 Mar, 2012 08:39 am
@parados,
parados wrote:
SO... as a strict constitutionalist, you think the 2nd amendment only refers to muzzle loading arms, correct?

Or are you willing to change the meanings of that part of the Constitution?
I reject your premises. It said n meant "arms" = weapons that can be borne.
The Bill of Rights defends principles.
Nothing in it limits those arms to being muzzle loading.

Accordingly, freedom of speech applies to HDTV,
and new religions have the benefit of First Amendment protection.

The USSC puts it this way in DC v. HELLER 554 US 290 (2008)

"Just as the First Amendment
protects modern forms of communications, e.g., Reno v. American
Civil Liberties Union, 521 U. S. 844, 849 (1997),
and the Fourth Amendment applies to modern forms of search,
e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001),
the Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not
in existence at the time of the founding."

THANKS for giving me an excuse to read HELLER again.





David
wandeljw
 
  1  
Reply Fri 16 Mar, 2012 09:28 am
@OmSigDAVID,
Scalia's opinion in Heller does suggest that not all weapons are protected by the second amendment:

Quote:
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

(emphasis added by me)
parados
 
  2  
Reply Fri 16 Mar, 2012 10:28 am
@OmSigDAVID,
Quote:
I reject your premises. It said n meant "arms" = weapons that can be borne.

So you think I can legally posses Stinger missiles under the 2nd amendment?
And I can also possess a suitcase nuke?
ehBeth
 
  0  
Reply Fri 16 Mar, 2012 10:32 am
@OmSigDAVID,
OmSigDAVID wrote:
I reject your premises. It said n meant "arms" = weapons that can be borne.


Your interpretation is better than anyone else's?
0 Replies
 
 

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