Last week U.S. Supreme Court Justice Antonin Scalia during a book tour plugging his new book “Reading Law” spoke to an audience at PrincetonUniversity. While he took some well deserved flack for his stance on gay
rights, there was a different exchange which I found more problematic.
Specifically he was asked about approaching constitutional
interpretation as though the United States Constitution were a "living
document."
Scalia argued that the Constitution is not a living
document; it is “dead, dead, dead, dead.” (He also called proponents of the “living
constitution” approach “idiots,” but we won’t rise to that bait. Suffice it to say his increasingly strident
protestations from extreme right are sounding more and more like that doddering
old fool on the park bench shouting at the pigeons. Okay, I suppose I did rise to that bait,
forgive me.)
Scalia's comment raises some of the flaws in the approach to constitutional interpretation known as “strict constructionism.”
Scalia opines that the constitution can only be interpreted
in terms of the context and meaning of its words during the time period in
which it was crafted. It is for this
reason, for example, that his dissent in NationalFederation v. Sebelius (the case upholding the Patient Protection and
Affordable Care Act, a/k/a “Obamacare” as a constitutional exercise of
Congress' taxing authority) he relies upon eighteenth century dictionaries in
discerning the intention of the drafters of the constitution. (Read in his dissent, for instance, where he
interprets the words “to regulate” in the context of dictionaries published in 1775,
1777, 1785 and 1828.)
There are at least three ways in which this analysis is
intellectually dishonest. First, this
approach assumes that words used in the composition of the constitution were
themselves capable of clear interpretation purely in the context of that
time. This was not the case. Many of the very individuals who participated
in the drafting of the constitution became Federal legislators and the record
of those first congresses reflect ongoing debate about what the constitution
meant even within the context of its own times.
The fact that Scalia himself can identify multiple definitions underscores
this point, rather than undermining it.
No later than 1819, in McCulloch v. Maryland, 17 U.S. 316
(1819), Chief Justice John Marshall wrote that the constitution is “intended to endure
for ages to come, and, consequently, to be adapted to the various crises of
human affairs.”
Secondly, the 18th century as a context is itself “dead,
dead, dead, dead.” Documents cannot be
interpreted “in context” once that very context has vanished forever. Any
view of that context now is necessarily historical, seen through the prism of
the current day and age.
The founding fathers, for instance, several of whom were
among the great scientific minds of their generation (Benjamin Franklin comes
to mind), were aware that the future would bring progress, technological and
otherwise, and that their document would be one which would require adaptation
to future ages. To suggest that any
interpretation of the document compelled the interpreter to remain rooted to
the sensibilities and viewpoint of the late eighteenth century is simply
intellectually dishonest. Seriously,
when is the last time you had snuff?
Danced a minuet? Burned a witch
at the stake? (Okay, maybe that last one
is overstating the case).
The Pentateuch and the Gospels were written thousands of
years ago and yet nobody attempts to interpret these canons in strict terms of
the “parlance” of 50 A.D., or 250 B.C.E. and so forth. For starters, there just aren’t that many
people around who speak the Aramaic variant of the day. No, these ancient documents are always placed
in contemporary context when interpreted.
Their readers seek guidance from these sources in contemporary settings. Similarly, the enjoyment of Shakespeare is
not in focusing on the meaning of works in Elizabethan England, but rather what
lessons do we glean from Hamlet, Macbeth, King Lear in the context of our
current times?
Reading canonical works strictly in the context of their
creation is a noble academic pursuit --- for historians --- doing so is not,
however, the proper analysis for meaningful contemporary thought or usage.
Finally, “strict constructionism” has historically been the
justification behind those who rail against an “activist court.” This is the easiest argument to defeat. Historically, whether conservative leaning or
liberal leaning courts are “activist” is always in the eye of the
beholder. Which court would have been
more activist, one that endorsed the election of George W. Bush or one that validated
the election of Al Gore?
In our view, at least, it is not the constitution that is “dead,
dead, dead, dead,” it is Scalia's analysis that is.
You think that people do not follow the literal statements in the bible (when it suits their positions)?
ReplyDeleteGranted that Scalia is an idiot.
Certainly. It's not unheard of for a judge to decide what outcome is desired, then work towards a justification for that conclusion. Some judicial opinions are merely rationalizations for where the court wanted the case to end up anyway.
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