IMMORAL MAXIM #3: THE TEXT OF THE CHARTER

TOPIC #3. The Charter’s Text: Originalism, Textualism, and the Founders’ Constitution.

“In law as in Religion THE LETTER KILLS’ but ‘THE SPIRIT MAKES ALIVE.’” [Alexander Hamilton, 1784]

“The Constitution that I interpret is not living, but dead.” &...
"I don't think it's a living document, I think it's dead. More precisely, I think it's enduring. It doesn't change. I think that needs to be orthodoxy." Antonin Scalia. 1

“The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”  Oliver Wendell Holmes, Jr., The Common Law

If you wait a while, Scalia will often tell you exactly what is wrong with his approach. In the very act of spelling out his understanding of a Constitution which stipulated that “no religious Test shall ever be required as a Qualification to any Officer or public Trust under the United States” and whose First Constitutional Amendment began with “Congress shall make no law respecting an establishment of religion,” Scalia reverts to the presumptuous partisan stance which spurred so many American constitutional innovations. The fact that Scalia advocates a political or ideological orthodoxy instead of a religious orthodoxy doesn’t help. It makes it worse — most of us can understand that one’s God might require a deeper allegiance than most matters (even if one admitted one’s own necessarily partial understanding) — but to commit and attribute one’s faith-and-practice to a legal-political ideology is not credible. Furthermore, in point of fact, Scalia’s political ideology often seems more like a species of political fundamentalism than of an orthodoxy per se.
In calmer moments, Scalia will use somewhat less provocative language as he asserts his belief that the words and phrases of the Constitution have fixed and rigid meanings which mean today what they mean when they were adopted.2 Consequently, he argues, his task as a judge is to ‘simply’ interpret the text as it was originally understood by the Framers and Adopters of the Original Constitution or, occasionally, by the Amenders. He will occasionally add that the task is not usually very difficult. He then further argues that he does this so as not too impose his own private predilections into the text — and thus become a Maker of the Law instead of the neutral adjudicator or 'umpire' with which his profession is charged.3

The first problem with Scalia’s method of interpretation is that what he actually does as a judge is inconsistent with the understanding of the Constitution held by a significant number of those who wrote and ratified the Constitution. As a Supreme Court justice, Antonin Scalia is an avid user of the Court’s asserted power of judicial review. The Courts’s power of judicial review — its power to declare a legislative or executive action unconstitutional is not enumerated in the Constitution. To be sure, Hamilton’s Federalist #78 and John Marshall’s Opinion in Marbury v. Madison provide a rationale for asserting this power. But, as a matter of historical record, not only was the Court’s exercise of judicial review not mentioned in the Constitution — during the first decades of the nation’s history it was strongly condemned by such Founders as Gerry, Mason, Wilson, and Morris. Even Hamilton apparently had misgivings with Marshall’s Construction of the Court’s power to strike down a Congressional statute.4 There are a number of reasons why the country has gradually become more accustomed to and accepting of judicial review — but is precisely because it is a practical solution to the problem of fixing the boundaries between the various branches of the government that it has been accepted. A practical solution — in the American soul — is always better that no solution at all.5

A second and, in some ways, more most obvious problem with Scalia’s assertion is that on its face he appears to be saying that Supreme Court decisions should be understood primarily as linguistic exercises. That is simply not the case — a Federal Judge in the United States is fundamentally a legal professional whose job is to resolve legal controversies — legal controversies which inevitably carry significant political implications. Furthermore, because Antonin Scalia is a Supreme Court Justice he must interpret the present day import of very broad terms of indefinite reach — terms which were, when adopted, understood to have just such a broad and uncertain reach. Of course, it does not normally need to be mentioned that any American judge should be fluent in English and, besides, especially knowledgeable about the language of law. However, it is also believed that a judge must be impartial, fair-minded, or even, better, wise. [Of course, there is considerable debate about what constitutes ‘fair-mindedness.’] To assert that judicial interpretation is simply a species of inquiry into legal rules similar to mathematics or logic is to distort both the law and the Constitution.6 Not only is Scalia’s methodology fundamentally at odds with the methods actually used by the many of the Framers and Adopters of the Original 1987 Constitution and its Amendments, his arguments are frequently used as hypocritical cover for very partisan and subjective interests.7

We elaborate on this thesis by applying some fundamentals of common sense linguistics to Scalia’s central methodological thesis. Because Scalia’s method is one of frequent rhetorical fire, we shall reply with a mixture of common sense and rhetorical fire ourselves. However, in Appendix B we provide a more measured and essentially neutral considerations fundamentals of common sense linguistics below which should be more helpful in evaluating Constitutional discourse than Scalia’s stance of purported neutrality.8 The relevant issue — in my opinion — is that in Scalia’s jurisprudence broad Constitutional terms are entangled within some pertinent, but incomplete concrete realities in such a fashion as to distort their proper interpretation. Scalia states that the proper interpretation is not a question of literal interpretation or abstract interpretation, but he is usually searching for (the) correct interpretation. His search is for a Holy Grail of “The Right Answer” — as opposed to a defensible and proper interpretation which may be cogent or even persuasive.

As mentioned above Scalia’s very own words should give us pause. When a Supreme Court Justice is chosen, he is not chosen primarily for his credentials in Applied Historical Linguistics. The problems only multiply when his approach is examined carefully. To begin with, the ‘Framers’ did not always agree on the meaning of the Constitutional text. Such broad terms as “due process of law,”“necessary and proper,” “equal protection of the laws,”and “general welfare” have always been contentious.9 The debates between founding Federalists and the Republicans which continued for the next few decades after the adoption of the Constitution make that abundantly clear. These and other controversies have continued and arisen now into the twenty first century. Nor did the ‘Framers’ agree on the methodology which should be used to interpret the text. (It seems, for example, that Madison postponed the publication of his notes on the Constitutional Convention until after his death to allow time for the citizens of the new country to make their own determinations of the meaning of the text.)10 It was also quite clear to the participants of the Constitution that their work often reflected compromises between opposing interests — so that any adapted terminology would inevitably be given inconsistent interpretations by various parties.11 [F 3-11] Almost ignored in Scalia’s argument is that human political documents are almost always recognizably inconsistent at some level.12 [F 3-12] We are not discussing mathematics.
However, the deepest problem with Scalia’s insistence that there is almost always a clear, decipherable interpretation of the 1787-1789 meaning of the Constitution’s Broad Compass is that this ideology has become a cover for modern partisan interests that are never honestly articulated. Thus, Justice Scalia is relatively indifferent to the religious rights of Amerindians and the private concerns of gay men, but he is a bull when it comes to the interests of his brand of conservative Catholicism or of plutocratically empowered speech. When he addressing the issue of poor and minority prisoners on death row, Justice Scalia generally supports a very narrow reading of the 8th Amendment, but when it comes to executive power he usually provides a very expansive reading of the Constitutional text. In an opinion on Guantanamo detainees he argued that the U. S. base at Guantanamo was, for legal purposes, “Outside” of the United States and thus the President’s actions were ‘outside’ the legal control of the Court. Of course, other than prisoner revolts and occasional visitors and low level workers, Guantanamo has been an American-run operation, spending American dollars, using American soldiers, following the directives of American generals and American presidents, and showing to the entire world an Ugly American face that is utterly at odds with our own ideals.


FOOTNOTES; CASES; BOOKS

FOOTNOTES.

[Footnote 3-1] The first quote is from Atkins v. Virginia (2002). The second part is but one of many amplifications he has given later. It is from a 2008 speech at Thomas Jefferson High School in Alexandria, Virginia.

[Footnote 3-2] SCALIA elaborates, “Much of the harm that has been done in recent years by activist Constitutional interpretation… is made possible by a theory which says that, unlike an ordinary law, which doesn't change -- it means what it meant when it was enacted, and will always mean that -- unlike that, the Constitution changes from decade to decade, to comport with... quote "the evolving standards of decency that mark the progress of a maturing society".”

[Footnote 3-3]
The political subtext is that Scalia believes that this is the particular provenance of liberal judges whose activism was most egregiously exemplified by the Warren Court and the later Roe v. Wade decision. Two books which discuss Scalia’s arguments in detail are Scalia’s A Matter of Interpretation: Federal Courts and the Law and Steven Calabresi’s Originalism: A Quarter-Century of Debate. Both books contain long arguments by Scalia plus commentary and criticism.

[Footnote 3-4] Learned Hand (1958). The Bill of Rights.

[Footnote 3-5] The British system can be characterized as leaving Parliament as the final arbiter of Constitutionality. However, recourse to either a final legislative or executive arbiter as the final governmental arbiter has never been a viable prospect for Americans.

[Footnote 3-6] Scalia’s term is ‘A law of rules’ as [constituting the fundamental requirement for establishing] the ‘rule of law.’ As we proceed we will discover that this compartmentalization of legal language obscures the very text he purports to protect.

[Footnote 3-7]. Appendices D and E explore some Scalia opinions rooted in a flawed use of purported “simple” or “obvious” rules of interpretation which violate fundamental usages of language. Scalia’s holdings in the instances cited in these Appendices are perceived here as representing persistently unwarranted templates for injustice. Obviously, the reader may or may not agree with either Scalia or the author. However, the author believes that he [LCHj] is placing his actual operative principles on record — and this should, at a minimum, make for a more honest debate.

[Footnote 3-8]. Some rather neutral linguistic considerations are provided in Appendix B - THE MULTIPLE IMPLICATIONS OF WORDS IN ORDINARY AND CONSTITUTIONAL DISCOURSE: A PRIMER. On the other hand, Appendices D and E are explicitly polemical counters to Scalia’s holdings.

[Footnote 3-9] Indeed, during the Ratification debates Edmund Randolf objected strenuously to some of these terms precisely because they had such far reaching and uncertain controversial implications.

[Footnote 3-10] To be sure, there have always been justices and scholars with methodologies similar to Scalia’s. To wit: “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.” — South Carolina v. United States, 199 U.S. 437, 448 (1905). Examined more closely, however, any intellectual safety in such approaches of ‘originalism’ and ‘a jurisprudence of original intent’ evaporates as we shall see below. Even Dred Scott (1857) was purported to be a (mere) exercise in fidelity to the Founder’s words and intentions.

[Footnote 3-11] Ample evidence for my assertions are provided in Levy’s Original Intent and the Framers’ Constitution. For starters, on occasion both Hamilton and Madison (separately) during subsequent political debates might adopt either restrictive or broad interpretations of various clauses at variance with previous statements which they had made at the convention, in The Federalist, or in governmental affairs. See the Bibliography.

[Footnote 3-12] I will explore this issue in more depth in APPENDIX Z - Fundamental Tensions and Contradictions in the Constitution of The United States.

CASES CITED

Dred Scott, 19 Howard 393 (1857)
Marbury v. Madison, 1 Cranch 137 (1803)
Roe v. Wade, 410 U.S. 113 (1973)
South Carolina v. United States, 199 U.S. 437, 448 (1905)

Maxim #3 - BOOKS NOTED

Calabresi, Steven G., Editor (2007). Originalism: A Quarter-Century of Debate. Regnery Publishing Inc.: Washington, DC. 360 pages.
Learned Hand (1958). The Bill of Rights. Atheneum: New York. 97 pages. [The Oliver Wendell Holmes Lectures]
Levy, Leonard (1988). Original Intent and the Framers’ Constitution. Ivan R. Dee: Chicago.
Antonin Scalia (1997). A Matter of Interpretation: Federal Courts and the Law. [Amy Gutmann, Editor]. Princeton University Press: Princeton, NJ. 159 pages.