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Antonin Scalia and the Dilemma of Constitutional Originalism
TL;DR: Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law as mentioned in this paper, and his substantial effect on the terms of debate in constitutional law is not likely to be matched by a comparable influence on the future of the law itself.
Abstract: Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Before he took his seat on the Supreme Court, it was barely respectable to treat the Constitution, understood to mean what it meant to those who wrote and ratified it, as the law. Constitutional law was - as every sophisticated lawyer, jurist, and academic understood - whatever the courts said it was, and the written document had been superseded in significant part by a “living constitution” that reflected the progressive political agenda of the modern left. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to move the law ever farther to the left frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. His effort to alter the Supreme Court’s approach to constitutional adjudication faced serious obstacles that will continue to frustrate Justices - and observers like me - who share Scalia’s desire for a revival of respect for the written Constitution. Most obviously, political realities could easily prevent presidential appointments from producing a majority of like-minded Justices any time soon, if ever. There are, however, some more interesting obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.
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TL;DR: In a follow-up article as mentioned in this paper, the same authors explored the deific decree insanity cases, cases in which a defendant claims that they committed a murder because God told them to do so, and pointed out that these men followed traditional religious approaches to assessing their revelation, and seemed in other respects free of mental illness.
Abstract: This paper confronts the relation between law and revelation. What happens when “reasonable minds differ” has been a question for me for a long time, but that question assumed that the differing minds were both reasonable. The problem of what to do when the intersubjective reason of the law confronts the “absolute truth” of divine revelation takes that problem to a new crisis point, one that has contributed to what President Obama recently referred to as an "epistemological crisis" in American politics.
The paper builds on a previous article in which I took a deep dive into the doctrine of deific decree insanity cases: cases in which a defendant claims that they committed a murder because God told them to do so. One of the most troubling cases that I highlight in this essay involves a murder by leaders of a group calling themselves the Gatekeepers, in which two men believed they had both received a message from God telling them to kill a wayward former acolyte. The case is troubling because these men followed traditional religious approaches to assessing their revelation, and because they seemed in other respects free of mental illness.
As I confronted these cases, I didn’t want to take the easy way out of declaring that everything “unreasonable” is insanity, which deprives defendants of personhood and demeans their faith. On the other hand, I did not want to give up on the reason of law entirely, which would, I think, result in solipsism and the failure of intersubjectivity. The very long rabbit-hole I went down, in the 88 printed pages and 347 footnotes of the earlier paper, Unreasonable Revelations, left me with an approach to these cases which would acknowledge the possibility of religious revelation, but declare it beyond law’s jurisdiction, and therefore a factor that could not, by itself, excuse a serious crime (though mercy would remain an option). For lesser crimes, American law already has a principle of religious accommodation in the Religious Freedom and Restoration Act that treats religious faith with “judicial shyness.”
In this article, I relate these deific decree cases, weirdly, to constitutional originalism. As I read about the deific decree cases and their legal history, I fell headlong into the history of the Reformation in England. Part of the question for U.S. Constitutional law about how to deal with religious differences stems from the experience of religious persecution during that period, when people were hung or beheaded for either believing in transubstantiation or not, depending on which monarch was currently reigning. It struck me that the Puritan effort to overturn Catholic tradition (and corruption) in favor of a “purification” and return to the original Biblical text (Sola Scriptura) had an analogy to constitutional originalism’s attempt to purify American constitutional tradition by returning to an ur-text or framing moment. This seemed a bit crazy until I very belatedly discovered Sanford Levinson’s book, Constitutional Faith, which makes the same point more elegantly. It seemed to me that originalism’s response to our current American epistemological crisis is to double-down on certainty. Originalism seems to be one response to the crisis which pretends to find a “value free” approach to questions of constitutional values by turning outside law to history.
I argue that this quest for certainty, like the Protestant reformation, does not promote unity or rehabilitate legal reason, but the reverse: it collapses itself into schism and individual solipsism. This happens because both movements (Puritanism and Originalism) reach outside the “humble law” of human tradition and institutions to claim an absolute truth. They destroy “humble law,” but in the process are left chasing an absolute truth that cannot provide what they seek, because all human truth ends up being incompletely intersubjective and temporal and customary and “institutional.” This general insight is not at all interesting or unique. Wittgenstein said rule-following was dependent upon a “form of life;” Nietzsche noted this progression in “how the real world became a myth”; Heidegger said it about the nihilism of metaphysics; Levinas said it when he argued that ethics comes before ontology, etc. So, just as law cannot judge “divine decrees,” law cannot judge “absolute truths.” Law is incomplete, temporal, and has no ur-source. It is simply our way of getting along and trying to treat like cases alike over time, as best we can, together, see to do so.
One point I wish I had made more clearly: I don’t think that history is just solipsism, though some of the passages in this paper suggest that account. Historians have customs about doing history that provide intersubjectivity within the practice of history. The problem is not that history is solipsism, but that law is not history. History looks for hidden truths. Good history reveals something about the past we did not know before. Law looks for founding principles for a just and fair society. Part of what makes for a just and fair society is treating like cases alike. But historians don’t look at history to find moral exemplars (these days) or to find continuities only. They could care less whether the founders were well-intentioned or just wanted to get rich on the slave trade. They don’t look at history to find ideals, or patterns of treating like cases alike, but to find discontinuities with prior histories -- new and different perspectives that have not yet been discovered.
So when law starts looking to history for absolute truths about founding values, it ties its wagon to bad intentions and discontinuities too, depending on what historians uncover, rather than only on enduring principles of fairness that can establish a just society. The Second Amendment could be read historically as promoting the genocide of Iroquois as easily as promoting a right to self-defense in the home. (Here, the picture differs from Puritanism, which, after all, assumes that the Bible is the product of infallible divine revelation. The Founders, however, were far from infallible and divine).
So, when law starts looking to history, its own custom is to put on rose-colored glasses, to assume the best intentions of the framers or framing generation, just as courts are required to assume that statutes are constitutional and rational and enacted for the good of the whole. Law looking at history necessarily begins picking and choosing just the bits that seem good and valuable – which is not a value-free enterprise of finding absolute truth, but the same old incremental search for reasonableness that it ever is, only now under a false cloak of objectivity. This picking and choosing of bits of history comes to look like solipsism, if the customs and institutions of legal precedent have been discarded as insufficiently grounded, because now the intersubjective "humble law" reason embedded in the institutions no longer grounds the search for “good bits.” In the end, though, originalist history pretends at objectivity, but ends up finding the institutional norms it took with it into the historical investigation, norms that are grounded in institutional custom and case law, not historical fact -- and are indeed the very sources it pretends to eschew.
5 citations
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TL;DR: In this paper, the authors show that the framers of the Constitution considered a duty of clarity and clarification for judges to decide whether or not to follow a piece of legislation if it violates the Constitution.
Abstract: This article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.The best categorization of this duty of clarity and clarification is that it was an aspect of the judicial power granted under Article III of the Constitution. Thus, the article rejects James Bradley Thayer’s form of judicial deference - that legislation should be uphold on the basis of any interpretation that could be embraced by “a rational person” - as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands without any clear framework of discipline provided by legal rules. As a result, Thayer’s concept of constitutional deference has a larger scope and effect than it did at the jurisprudence of the Founding where judges were not seen as lawmakers in that sense and where the judicial duty of clarity has jurisprudential roots in natural law rather than positivism. But the article also rejects the notion that judicial review permits judges to overturn legislation based on their own view of the Constitution, even if their interpretation is not clearly the best one. The duty of clarity casts doubt on the legality of constitutional construction as opposed to constitutional interpretation in the course of judicial review, because constitutional construction can occur only when the meaning of the Constitution is unclear.
4 citations
Posted Content•
TL;DR: In this paper, a short piece commemorates the passing of Justice Scalia, highlighting his ability to appeal to different audiences and his embrace of originalism gave him popular appeal, and distinguished his originalism from that of others with his "faint-hearted originalism," cabined by stare decisis and a dose of prudence.
Abstract: This short piece commemorates the passing of Justice Scalia. The piece highlights Justice Scalia's ability to appeal to different audiences. His embrace of originalism gave him popular appeal. His embrace of textualism appealed to academics and practitioners. He distinguished his originalism from that of others with his "faint-hearted originalism," cabined by stare decisis and a dose of prudence.
2 citations
Posted Content•
TL;DR: O'Scannlain and Sykes as discussed by the authors argued that one of them is better than the others, at least for purposes of adjudication under the Second Amendment, and argued that Judges Diarmuid O'ScANNlain and Diane Sykes have shown that the right way to decide cases in this nascent area of constitutional law.
Abstract: In Heller v. District of Columbia, the Supreme Court held that the Second Amendment protects the right of individuals to keep and bear arms for self-defense. In McDonald v. City of Chicago, the Court held that this right is also protected from infringement by the states under the Fourteenth Amendment. Thus, many important decisions about the reach of government’s regulatory authority will henceforth come from the federal courts. The scope of the Second Amendment right, however, has not yet been clarified, either by the Supreme Court or by a consensus of the lower courts.This short symposium contribution sketches out several possible approaches to defining the scope of the right, and argues that one of them is better than the others, at least for purposes of adjudication under the Second Amendment. The essay argues that Judges Diarmuid O’Scannlain and Diane Sykes have shown — more clearly than the Supreme Court has yet done — the right way to decide cases in this nascent area of constitutional law.
1 citations
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26 citations
Posted Content•
TL;DR: Heller as mentioned in this paper was a test case in a different sense as well, and the Court's reasoning is at critical points so defective-and so transparently defective in some respects-that Heller should be seen as an embarrassment for those who joined the majority opinion.
Abstract: District of Columbia v. Heller was a Second Amendment test case, brought by a group of libertarian lawyers on behalf of plaintiffs with respectable backgrounds and appealing reasons for seeking relief from the District of Columbia's extremely restrictive gun control regulations. Heller turned out to be a test case in a different sense as well. With almost no relevant precedent to constrain its analysis, the Supreme Court was given the opportunity to apply a jurisprudence of original meaning to the Second Amendment's manifestly puzzling text. The Chief Justice ensured that this would be a pretty fair test of originalism when he assigned the majority opinion to Justice Scalia. In Heller, the lawyers who initiated the litigation won their test case. Justice Scalia and his colleagues, however, flunked their test. This was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration. Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment. In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result. But the Court's reasoning is at critical points so defective-and so transparently defective in some respects-that Heller should be seen as an embarrassment for those who joined the majority opinion. I fear that it may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial defenders.
14 citations
"Antonin Scalia and the Dilemma of C..." refers background in this paper
...These endorsements were not supported by an originalist analysis, and Scalia’s efforts to ground some of them in precedent were, speaking very charitably, completely unsuccessful.(38) If the endorsements were necessary to get five votes for a majority opinion, they illustrate another reason not to think that Heller is a major step toward the triumph of originalism....
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01 Jan 2000
14 citations
"Antonin Scalia and the Dilemma of C..." refers background in this paper
...But when you have 200 years of precedents, how could one return consistently to the ultimate touchstone without threatening the legal stability associated with the principle of stare decisis? Some commentators regard Scalia’s approach to constitutional adjudication as essentially opportunistic: he followed precedents when they produced a result he liked and invoked originalism when that got him what he wanted.(19) Scalia sometimes pointed to cases in which he insisted on an originalist analysis even though it led to results he regretted,(20) but this obscures a deeper problem....
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TL;DR: In a follow-up article as mentioned in this paper, the same authors explored the deific decree insanity cases, cases in which a defendant claims that they committed a murder because God told them to do so, and pointed out that these men followed traditional religious approaches to assessing their revelation, and seemed in other respects free of mental illness.
Abstract: This paper confronts the relation between law and revelation. What happens when “reasonable minds differ” has been a question for me for a long time, but that question assumed that the differing minds were both reasonable. The problem of what to do when the intersubjective reason of the law confronts the “absolute truth” of divine revelation takes that problem to a new crisis point, one that has contributed to what President Obama recently referred to as an "epistemological crisis" in American politics.
The paper builds on a previous article in which I took a deep dive into the doctrine of deific decree insanity cases: cases in which a defendant claims that they committed a murder because God told them to do so. One of the most troubling cases that I highlight in this essay involves a murder by leaders of a group calling themselves the Gatekeepers, in which two men believed they had both received a message from God telling them to kill a wayward former acolyte. The case is troubling because these men followed traditional religious approaches to assessing their revelation, and because they seemed in other respects free of mental illness.
As I confronted these cases, I didn’t want to take the easy way out of declaring that everything “unreasonable” is insanity, which deprives defendants of personhood and demeans their faith. On the other hand, I did not want to give up on the reason of law entirely, which would, I think, result in solipsism and the failure of intersubjectivity. The very long rabbit-hole I went down, in the 88 printed pages and 347 footnotes of the earlier paper, Unreasonable Revelations, left me with an approach to these cases which would acknowledge the possibility of religious revelation, but declare it beyond law’s jurisdiction, and therefore a factor that could not, by itself, excuse a serious crime (though mercy would remain an option). For lesser crimes, American law already has a principle of religious accommodation in the Religious Freedom and Restoration Act that treats religious faith with “judicial shyness.”
In this article, I relate these deific decree cases, weirdly, to constitutional originalism. As I read about the deific decree cases and their legal history, I fell headlong into the history of the Reformation in England. Part of the question for U.S. Constitutional law about how to deal with religious differences stems from the experience of religious persecution during that period, when people were hung or beheaded for either believing in transubstantiation or not, depending on which monarch was currently reigning. It struck me that the Puritan effort to overturn Catholic tradition (and corruption) in favor of a “purification” and return to the original Biblical text (Sola Scriptura) had an analogy to constitutional originalism’s attempt to purify American constitutional tradition by returning to an ur-text or framing moment. This seemed a bit crazy until I very belatedly discovered Sanford Levinson’s book, Constitutional Faith, which makes the same point more elegantly. It seemed to me that originalism’s response to our current American epistemological crisis is to double-down on certainty. Originalism seems to be one response to the crisis which pretends to find a “value free” approach to questions of constitutional values by turning outside law to history.
I argue that this quest for certainty, like the Protestant reformation, does not promote unity or rehabilitate legal reason, but the reverse: it collapses itself into schism and individual solipsism. This happens because both movements (Puritanism and Originalism) reach outside the “humble law” of human tradition and institutions to claim an absolute truth. They destroy “humble law,” but in the process are left chasing an absolute truth that cannot provide what they seek, because all human truth ends up being incompletely intersubjective and temporal and customary and “institutional.” This general insight is not at all interesting or unique. Wittgenstein said rule-following was dependent upon a “form of life;” Nietzsche noted this progression in “how the real world became a myth”; Heidegger said it about the nihilism of metaphysics; Levinas said it when he argued that ethics comes before ontology, etc. So, just as law cannot judge “divine decrees,” law cannot judge “absolute truths.” Law is incomplete, temporal, and has no ur-source. It is simply our way of getting along and trying to treat like cases alike over time, as best we can, together, see to do so.
One point I wish I had made more clearly: I don’t think that history is just solipsism, though some of the passages in this paper suggest that account. Historians have customs about doing history that provide intersubjectivity within the practice of history. The problem is not that history is solipsism, but that law is not history. History looks for hidden truths. Good history reveals something about the past we did not know before. Law looks for founding principles for a just and fair society. Part of what makes for a just and fair society is treating like cases alike. But historians don’t look at history to find moral exemplars (these days) or to find continuities only. They could care less whether the founders were well-intentioned or just wanted to get rich on the slave trade. They don’t look at history to find ideals, or patterns of treating like cases alike, but to find discontinuities with prior histories -- new and different perspectives that have not yet been discovered.
So when law starts looking to history for absolute truths about founding values, it ties its wagon to bad intentions and discontinuities too, depending on what historians uncover, rather than only on enduring principles of fairness that can establish a just society. The Second Amendment could be read historically as promoting the genocide of Iroquois as easily as promoting a right to self-defense in the home. (Here, the picture differs from Puritanism, which, after all, assumes that the Bible is the product of infallible divine revelation. The Founders, however, were far from infallible and divine).
So, when law starts looking to history, its own custom is to put on rose-colored glasses, to assume the best intentions of the framers or framing generation, just as courts are required to assume that statutes are constitutional and rational and enacted for the good of the whole. Law looking at history necessarily begins picking and choosing just the bits that seem good and valuable – which is not a value-free enterprise of finding absolute truth, but the same old incremental search for reasonableness that it ever is, only now under a false cloak of objectivity. This picking and choosing of bits of history comes to look like solipsism, if the customs and institutions of legal precedent have been discarded as insufficiently grounded, because now the intersubjective "humble law" reason embedded in the institutions no longer grounds the search for “good bits.” In the end, though, originalist history pretends at objectivity, but ends up finding the institutional norms it took with it into the historical investigation, norms that are grounded in institutional custom and case law, not historical fact -- and are indeed the very sources it pretends to eschew.
5 citations
[...]
TL;DR: In this paper, the authors show that the framers of the Constitution considered a duty of clarity and clarification for judges to decide whether or not to follow a piece of legislation if it violates the Constitution.
Abstract: This article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.The best categorization of this duty of clarity and clarification is that it was an aspect of the judicial power granted under Article III of the Constitution. Thus, the article rejects James Bradley Thayer’s form of judicial deference - that legislation should be uphold on the basis of any interpretation that could be embraced by “a rational person” - as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands without any clear framework of discipline provided by legal rules. As a result, Thayer’s concept of constitutional deference has a larger scope and effect than it did at the jurisprudence of the Founding where judges were not seen as lawmakers in that sense and where the judicial duty of clarity has jurisprudential roots in natural law rather than positivism. But the article also rejects the notion that judicial review permits judges to overturn legislation based on their own view of the Constitution, even if their interpretation is not clearly the best one. The duty of clarity casts doubt on the legality of constitutional construction as opposed to constitutional interpretation in the course of judicial review, because constitutional construction can occur only when the meaning of the Constitution is unclear.
4 citations
"Antonin Scalia and the Dilemma of C..." refers background in this paper
...judicial review should be reserved for cases involving clear constitutional violations.(7) In 1803 the Court...
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