Let me give you an example of what I think he means. I haven't researched the underlying facts and arguments myself, so am going by second- and third- hand accounts here. But the moral of the story does not depend on the following facts being accurate, which they may well not be.
When the constitutional convention wrote the language pertaining to slavery, the intent of the prevailing side was to sustain slavery in the South forever. But they couldn't bring themselves, or their opponents wouldn't let them, put this down in so many words. The words in the constitution are compatible both with sustaining slavery and with abolishing it. These were the words that were published and submitted for ratification in 1787. The records of the convention were not.
In the early 1830s, shortly after Madison had died, his notes on the convention were published. The intent of the authors was now much clearer, more pro-slavery than the words of the constitution would suggest to a non-member of the convention. Sure enough, pro-slavery advocates used this as an argument for demanding that the federal courts interpret the constitution in a more pro-slavery spirit than they had before. The abolishionists, by contrast, argued that what the states ratisfied was the meaning of the words, not the intentions that the members of the convention had in their mind. The courts' interpretation of the constitution should therefore remain unaffected by the publication of Madison's notes.
Again, I am not as sure as I want to be that this account of the relevant history is true. But if it is, I agree with the abolishionists' hermeneutical argument. And so, I take it, does Scalia, in the quote that you cited.
I don't think this story is analogous to the interpretation of laws. In your case, we want to find out something about the gangster: what did he mean, should we jail him for incitement to murder? By contrast, when we interpret laws, we ultimately want to find out something about us. Which rules shall we, the people, be bound by? (Or, more accurately, you the people.)
I concede that in most cases it makes no difference, because the meaning is the same whether you read the proceedings of the constitutional convention, or Blackstone's Commentaries, or Adam Smith's Lectures on Jurisprudence, or Friedrich Schiller's Don Carlos for that matter ("Geben Sie Gedankenfreiheit!") But in the rare cases where it does make a difference, the decisive question is which meaning the words convey to their reader, not which intentions led the authors to write the words.
I don't see the oddness in being a cultural pessimist and a libertarian at the same time. As long as one is more pessimistic about the culture of the rulers than about the culture of the ruled, lit seems to me that ibertarianism still the logical policy conclusion.
And what role do you envision for the courts to play when such a reversion begins?
Scalia has a floor below which he will not let society decent. It's a pretty low standard -- as Debra says he would hold the hanging of horse thieves constitutionally innocent. But he would draw a line with rounding up Gypsies in their caravans and forcing them into ghettos, as it still happens occasionally in Romania, with the tacit approval of the majority population. He would not permit situations like the one where the Serbian army rounds up Albanians and executes them for no reason. He would not permit drug dealers shooting up poor street kids, again with the tacit approval of the mayor and the city population. ('At least someone is doing something about these punks.') In all these situations, Scalia would draw a line. But a 'living constitution' scholar, it seems to me, would have to conclude that the standards of decency have evolved to a point where these things are okay, and would have to permit them on those grounds.
I believe in writing laws that don't need state-of-the-art hermeneutics to understand. I believe in courts who write into their opinions "Dear legislators, we can't make sense of this law; please write a better one." That would be in contrast to courts who just make up a meaning on the fly.
(1) When originalists like Scalia talk about "original intent," they are not talking about the long-range desires of the drafters, but rather the intent behind the words used in the text. It is not a question, then, of what the drafters wanted from the document as a whole, but what they wanted when they used particular words and phrases in that document;
Scalia, I am quite certain, would have read the constitution the same way that the antebellum supreme court read the constitution: as permitting and protecting slavery. If any abolitionist genuinely believed that the text of the constitution was antithetical to slavery (and I sincerely doubt that such an abolitionist actually existed), they would not have prevailed on a strictly textualist reading of the constitution.
In any event, you still haven't addressed the point that I raised before: that Scalia's position on interpreting ordinary legislation (anti-original intent) is incompatible with his position on interpreting the constitution (pro-original intent).
It's official: you are not an originalist. Your avatar should be hanging his head in shame.
I don't see how anyone can be both a pessimist and a libertarian.
There you go again, setting up your strawman. It is inconceivable that any rational human would sincerely believe that the constitution permitted mass executions of ethnic minorities.
If someone is accused of breaking a badly written law, the court cannot simply say that it has no idea what the law means. That is not an option. In that situation, the court must interpret the law to give effect to what the legislature was attempting to accomplish, notwithstanding the legislature's bad draftsmanship.
(1) The state may regulate the medical profession. As with ALL medical procedures, the state may require that a patient's medical decision is informed. So long as state regulation of the medical profession does not place an undue burden on an individual's liberty interests, the state regulation passes constitutional scrutiny.
How about my liberty interest in auctioning off my kidney on Ebay? As long as I am informed about the risks of living with just one kidney, is it unconstitutional in America that a state prohibit me from doing this? Or to prohibit a doctor from operating? I doubt that.
If your argument is that the state is depriving the fetus of its interest in life by failing to protect that life, case precedent firmly establishes that the government has no affirmative duty under the due process clause to protect any person. The Supreme Court is without power to impose that duty on a state to affirmatively protect life through state laws.
Let's assume your assertion is true in the broad and sweeping form in which you made it. It would follow that if a state were to legalize murder, the Supreme Court would be without power to do anything about it. It couldn't impose a duty to protect its citizens' life through state laws. This conclusion cannot be true, so there must be some qualifications to your statement it follows from. (And the equal protection clause would not give it that power either, because every murder would be legal. )
But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.
In short, a court would NEVER rule that a state violates the federal constitution if a state "permits" abortion. Abortion will never be a fetus's right to life or equal protection issue.
I wouldn't be so sure of that.
General language, like the one in which legal philosophy talks about concepts like "life" and "liberty", tends to be unhelpful in deciding cases where fundamental principles are on both sides of the balance that the court has to strike.
What if it's an unlocked facility with several stalls with doors, several sinks, and mirrors, and I'm standing in front of a mirror with my skirt hiked up to my waist while I'm straightening my skewed and uncomfortable panty hose. Is your hypothetical man in the ladies bathroom to straighten his panty hose too? I can't analyze the situation until all the facts are in.
I have no intuition about how the details of the facts would affect the legal analysis. The thrust of my legal argument (which I don't believe in as a point of ethics) is going to be that prudishness justifies segregation no more than racism does.
But before we get there, I am interested in finding out if there is any non-trivial scenario in which the Supreme Court would find a violation of equal protection. So let's start with a harmless case, then turn up the volume as needed. Say the women's toilet is divided into booths, and the man is trying to use one of those booths. But he doesn't even get to enter the toilet -- the cleaning lady keeps him out before security gets him -- so there is no specific harrassment of women in the toilet to consider, or anything like that.
When reviewing gender classifications under the Fourteenth Amendment, the classification may not be completely unjustified because genuine differences between men and women do exist. A specific gender classification or policy might be entirely justified. Vigilant inquiry into the substance of the classification will reveal whether the policy is, in fact, justified. Lower courts have noted that “[w]hen . . . a gender classification is justified by acknowledged differences, identical facilities are not necessarily mandated. Rather[,] the nature of the difference dictates the type of facility permissible for each gender.” An illustrative example is “society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns.” The need for privacy justifies the separate facilities, and the differences between the genders demand different facilities.“ In the end, distinctions in separate facilities provided for males and females may be based on real differences between the sexes, both in quality and quantity, so long as the distinctions are not based on stereotyped or generalized perceptions of differences.
Debra LAW fulminates, using doubtful viewpoints which allegedly conform with Constitutional Law. I have already pointed out that Judges Roberts and Alito will not disturb "Roe vs. Wade" but that it will be torn to pieces by peripheral decisions.
If Debra LAW will look at the real world of courts and judges she will find that my prediction that states will erode Roe vs, Wade is coming true.
Chicago Sun- Times- Nov. 24th 2005
The Indiana Supreme Court on Wednesday upheld a law that requires women seeking an abortion to get counseling about medical risks and alternatives and to wait at least 18 hours after the session before going through with the procedure.
The court rule in a 4-1 vote that opponents of the law could not pursue their law suit which argued that privacy is a core right under the state Constitution that extends to women seeking to end their pregnancies. The court said that such a challenge would fail because the law " does not impose a material burden on any right to privacy or abortion that may be provided or protected " under the state Constitution.
Of course, you are the resident expert on Abortion and allied issues. You may not be so smug if you venture to go outside of your constricted tent.
I am sure that you cannot explain, given your sanguine remarks about the inviolability of Roe Vs. Wade why the feminists and the left wing are running around in terror about the possibility Roe and Wade will be overturned.
Does Debra LAW know that the Attorney General made a statement that Judge Roberts could indeed vote to overturn Roe Vs. Wade?
That was my point. The words of the constitution had a well-understood meaning as they were, so any relevation about the lawmakers' intent was irrelevant. The long-range desires of the drafters don't matter.
I don't know that the premise of your point is true. I think the important distinction for Scalia is not the category of the law, statute vs. constitution. It is the age of the statute.
I would be surprised if he expressed any interest in the ratification debate on the 27th amendment, a modern (1992) piece of constitutional legislation.
I would be equally surprised if he expressed indifference to the ratification debate on the alien tort claims act, if there is a surviving record. The alien tort claims act is a 1789 statute.) The reason is that Scalia is a textualist. When he interprets a law, his project is to make sense of the language, not of its speaker. The ratification debates over modern statutes do not tell him anything about 21st century legal English that he doesn't know already. He speaks this language himself.
By contrast, the ratification debates about the original constitution can teach him something he doesn't know about 19th century legal English and the meaning of constructs written in it. So can founding-era legal commentary from Blackstone (1769) to Story (1833). Or founding era court cases. Or even the behavior of founding era officials, acting in their official capacity. Scalia uses all these sources quite frequently -- not because they inform him about the legislature's intent, but because they inform him about the language that the legislature has written in. So yes, he is interested in the debates at the conventions, and yes, these conventions happen to convey the intent of the lawmakers -- but that's not the reason he is interested in them.
If I go barefoot on my upcoming pilgrimage to the Chicago University Law school, do you think he will forgive me?
Historically, lots of rational humans on the federal courts had no constitutional problem at all with lynching blacks, mass-executing Indians, and breaking US contracts with them at will. A good number of them sat on their benches after the 13th-15th amendments. There you go again, perpetuating your naive optimism about human nature.
Why? If the draftsmanship is so bad the court honestly can't understand it, what's wrong with saying something like this? "We don't understand this law, we can't tell if the defendant has broken it. The defendent goes free -- innocent until proven guilty."
Courts say that all the time when they can't make out what the facts are. Why not do the same when they can't make out what the law is? The only reason I see is fear of looking stupid.
Scalia Dismisses 'Living Constitution'
"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.
Scalia criticized those who believe in what he called the "living Constitution."
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."
"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."
Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."
And make no mistake: Scalia is just as much a believer in the "living constitution" as any of the jurists he criticizes. Anyone who doesn't believe that should take a look at Bush v. Gore to see how he completely ignores the original intent of the framers of the fourteenth amendment.
You could similarly argue that Jefferson and Madison didn't believe in liberty because they owned slaves.
And while the argument might be technically valid, and does prove some hypocrisy of the two, I would consider it hairsplitting in a discussion about political philosophy. It does not discredit a belief, nor the believers' allegiance to it, when they sin sometimes. Specifically, it doesn't discredit originalism, nor the originalists' belief in it, when they occasionally write activist opinions.
To convince me that "Scalia is just as much a believer in the 'living constitution' as any of the jurists he criticizes, you would have to show me that he departs from the original understanding of the constitution as often as they do. Occasional breaking of the limits he set for himself are insufficient evidence for the conclusion you draw.
Your position leaves me baffled, Thomas. If Scalia thinks he is adhering to a consistent jurisprudential philosophy, then his departures from that philosophy are not trivial, especially if they amount to the adoption of his opponents' philosophy. It would be like saying that stealing is wrong in all cases, except in the few cases where I choose to steal.
Thomas wrote:To convince me that "Scalia is just as much a believer in the 'living constitution' as any of the jurists he criticizes, you would have to show me that he departs from the original understanding of the constitution as often as they do. Occasional breaking of the limits he set for himself are insufficient evidence for the conclusion you draw.
That assumes that the believers in the "living constitution" depart from the original understanding of the constitution.
I've already identified one opinion in which Scalia joined which departed significantly from the intent of the constitutional framers. Show me an instance where someone from the "living constitution" camp made a similar departure. Then we can drop the generalities and talk specifics.
I disagree. It's like saying that stealing is wrong in all cases, but that I will sometimes steal nevertheless: Because I'm imperfect, I will sometimes act wrongfully.
Thus, if Scalia writes an activist opinion, that may make him a negligent originalist (he doesn't know he's breaking his originalist principles, so he breaks them). It may even make him a reckless originalist (he knows he's breaking his originalist principles, but he breaks them anyway). But it wouldn't necessarily make him a non-originalist (as in, he has no originalist principles to break.)
No, it presumes that everyone departs from the original understanding to some extent, which may or may not be zero.
Let's start with Gonzalez v. Raich as an interpretation of the Commerce Clause. Yeah I know, Scalia qualifies as a "living constitution" type in this case. (And he admits this. He has called himself a "fainthearted originalist" because he follows precedents like Wickardt v. Filburn. Justice Thomas wouldn't do that, and I wouldn't either.)
(UPDATE: To avoid any loyalty conflict that might arise from my having to attack Scalia the activist, maybe we'd better start with the dissents in United States v. Lopez. The point of law is the same, but friend and foe are more conveniently separated. The same is true of the dissents in United States v. Morrison.)