Notes on a Theory…

Thoughts on politics, law, & social science

Scalia on Law, Words and their Application

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In an interview with Jennifer Senior, Antonin Scalia valiantly dispatched a straw man. A lot of people have noted this, but I wanted to quote it, and suggest that much of the criticism, while correct, misses the main problem.

Had you already arrived at originalism as a philosophy?

I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

[snip]

What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.

So first off, what Scalia is saying here is factually–incontrovertibly– incorrect. Words do change in their meaning.  Some have taken this as evidence that Scalia doesn’t know what he’s talking about. And I suppose that’s possible.  But it’s also possible that Scalia takes this position because it helps him advance his legal agenda. That is, it helps him justify the substantive positions he takes, the role for the Court he prefers, and so on. By making this about ignorance, we are missing the politics, which makes it difficult to push back effectively.  ‘Originalism is wrong’ is a fine thing to say, but what originalism is doing and how it is doing it are far more important thing to think about.

That leads me to my next point.  Part of the confusion here has to do with what ‘meaning’ entails.  When it comes to reading a text (legal or not), meaning in the abstract shouldn’t change. That is, if you want to understand something written a long time ago, you need to know what the words used meant at that time.  Scalia is pretending that the Constitution was encased in amber until those awful modern liberals came along, at which point anything goes.  But change is pretty common. But that doesn’t mean, from an internal perspective, that this is appropriate.

What do I mean by ‘meaning in the abstract’? Principles. That is, the principles at the core of ‘freedom of speech,’ equal protection of the laws’, ‘regulations of …commerce among the states’ are supposed to be static.  But that doesn’t mean there should be no change.

Jack Balkin explains this well:

Fidelity to “original meaning” in constitutional interpretation refers only to…the semantic content of the words in the clause. We follow the original meaning of words in order to preserve the Constitution’s legal meaning over time, as required by the rule of law. Otherwise, if the dictionary definitions of words changed over time, their legal effect would also change, not because of any conscious act of lawmaking (or even political mobilization), but merely because of changes in language. So, for example, when Article IV says that the United States must protect the states from “domestic violence,” we should employ the original meaning, “riots” or “insurrections,” not the contemporary meaning, “spousal assaults.”

Fidelity to original meaning does not, however, require fidelity to any of the other types of original meaning, although these forms of meaning may be relevant evidence of original semantic content. More to the point, these other kinds of meaning may be very important for purposes of constitutional construction.

Fidelity to original meaning as original semantic content does not require that we must apply the Equal Protection Clause the same way that people at the time of enactment would have expected it would be applied. It does not require that we must articulate the purposes or functions of the  clause in exactly the same way the Framers and ratifiers would have or apply it only consistent with their specific intentions.Finally, it does not mean that the clause can only have the same associations to us that it had to the adopting generation. Today, for example, the clause is associated with many things in our minds and our political culture—like Dr. Martin Luther King and the civil rights revolution—that the adopting generation could not have known about.

What should change, what must change, is the application. How those principles apply is supposed to change.  There’s no reason to imagine that men who lived during slavery would have perfect insight into how to apply the idea that African-Americans are equal citizens.  There’s no reason to think that those who lived during Reconstruction, with the Civil War and slavery at the top of their minds, would see all the ways the general ideas (remember, section one doesn’t mention race, but speaks of ‘persons‘) that were written into the Fourteenth Amendment would apply to other issues.  But liberal legalists aren’t arguing that judges are free to do as they please, treating the text like silly putty. They are arguing that experience changes how we understand the application of these principles.

Balkin argues that his position is the real originalism, or a form of it. I doubt that will become generally accepted. But his point about law requiring unchanging semantic meaning but changing application is essential. And note–no one argues that Article IV’s mention of domestic violence means what we mean by that today. No one is arguing the point Scalia is attacking.  It’s almost as if he knows his actual position can’t be defended.

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Written by David Kaib

October 11, 2013 at 1:13 pm

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