Selling a Cramped Originalism

I make my living in the courts.  My job (and yes, I'm oversimplifying like crazy; live with it) is convincing judges* that they should do what I want them to do, decide the way I want them to decide.  Doesn't matter if I'm right.  What matters is that I win.

The best, most logical argument in the world ain't worth shit if the judge doesn't buy it.  Arrant nonsense that the judge accepts?  BINGO! 

It's a real world business this lawyering thing.  And so, and I know this will make some lawprofs cry, day-to-day and case-by-case I don't really care how we should understand/interpret/analyze/whatever the Constitution.  

In the scheme of things, though, it matters.  A constitutional republic (and pretty much everyone agrees that's what we have) can take many forms, even framed by the broad outline of our Constitution.  The republic Clarence Thomas thinks we have (or ought to have if we understood and applied the Constitution properly - i.e., as he does) is a very different place than the one that, say, Stephen Breyer imagines.  And neither looks all that much like . . . well, maybe like yours.

Which brings me to Ilan Wurman's mistitled A Debt Against the Living: An Introduction to Originalism.**  Mistitled because it's not an introduction at all it's an argument.  

Wurman isn't interested in explaining how originalism actually operates.  He doesn't say what it looks like in practice.  There's no particular vision of the republic here beyond the claim that an originalist republic would have a lot smaller federal government than ours.  

Instead of an introduction to originalism, Wurman's is an argument for originalism.  The book, he says, 

aims to arm the reader with basic arguments about the legitimacy of Constitution and our Founding, and to explain the relevance of these arguments to modern debates over constitutional interpretation.  It argues that the Constitution does form a debt against us - against the living generation - that compels us to continue to obey and abide by it today. It then argues that originalism, the idea that the Constitution should be interpreted as it was originally understood by the Framers who wrote it and the public that ratified it, is the only method of constitutional interpretation that faithfully discharges this debt.

Maybe.  But before I get to the carping, let me lay it out.  It works, roughly, like this.

First, there's what's virtually a given for Wurman:  Of course we should understand the Constitution as it was understood by those who wrote and ratified it.  Any other approach is understanding a lie. After all, when the Constitution says that the President must be at least 35 years old, if we think 40 is better and treat 40 as the rule . . . .  (That's not his example; his example involves fried chicken seasoned with "pepper to taste" but a preference for rosemary.)  

Well, sure.  But that's not a different way of reading or applying the Constitution.  That's rejecting the Constitution.  It's not the originalist's bogeyman of the "living Constitution."  It's just a new rule with no pretense to being an understanding or interpretation or even application of the Constitution.  And while there are certainly those who'd chuck out the Constitution we have in favor of whatever, they aren't the plausible opposition.

Everyone who matters in this debate believes in the Constitution.  The disagreement is in how to apply it.  Wurman's claim is that we should apply the "original public meaning," how it was understood at the time.  Not particularly by the folks who wrote it.  And not by the folks who adopted it.  But by . . . well, by the public (whoever they are).  And we can know how the public understood it by studying what Madison said in the Federalist Papers (not so much what Hamilton said, perhaps because he understood the Constitution differently than Madison).  And also by looking at what prominent folks thought it meant.  

All of which strikes me as . . . .  Well, Brennan spoke of the hubris of imagining that we can tell how the Framers would have viewed issues arising today that were beyond possibility in 1781.  And others have pointed out that Judges and Justices (and lawyers for godssake) are not historians.  But of course that doesn't mean they shouldn't try or that they can't come close.

So sure, Wurman says, we apply the Constitution as it was understood from the get go because that's what we do.  Not particularly satisfying, but there it is.

And now that we know how to interpret the Constitution, the question is whether we should bother. And of course we should.  Because "We the people" (or at least the white male property owners) adopted it.  And because it's a good thing - despite all the ways it's a bad thing.  And because, well, sure.  Which is about as non-controversial as it gets except for those folks who'd just toss it aside - and really, that's not who Wurman's talking to - or even who I am.

OK, so originalism is good and the Constitution is good.  And other approaches, hey they're malleable.  This week's flavor may not be next weeks.  They're just preferences and politics.  Which isn't nonsense, but Wurman blows the other folks off pretty quickly.

In any event, having now convinced you (Wurman seems to think), the only real question is whether originalism supports Brown v. Board of Education.  If originalism would accept separate but equal schools, then even if it's the only proper way to read the Constitution, it should be abandoned.  Shockingly, Wurman think originalism and Brown are a match made in heaven.  And he explains why.  Maybe you buy it, maybe you don't.  Most originalists do, he says, though he acknowledges that some don't. And, although he doesn't say it, I take it that the folks who don't, since they're originalists, also don't think the Brown test is all that significant.

The problem with Wurman's originalism is that it's cramped.***  Because it was to be a government of limited powers, if it isn't explicitly allowed, it must be forbidden.  (Except, of course, when he wants to stretch a point to get a result he wants - which he is mostly how he gets to originalism endorsing Brown.)  

But there's another way that, if the term weren't taken, you could also call originalism.  Ask what's the Constitution trying to achieve.  How, within its scope and framework, understanding it's lexical terms broadly rather than narrowly, do we get there?

Consider the Fourth Amendment: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And I get it that the Constitution doesn't say anything about an exclusionary rule for violations.  Wurman says that, therefore, originalist understanding would abolish the exclusionary rule.  But the exclusionary rule exists because without it the Fourth Amendment is no more than aspirational (we're remarkably close to that these days, but that's a different post).  If the Amendment is to be effected, the rule is a necessity.  So it's not part of the document and pretty clearly it wasn't part of the "original public understanding."  But effecting the Fourth Amendment requires it.  Which seems to me, but not to Wurman, the right test.

A Debt Against the Living is short.  It's mostly lucid.  You don't have to be a scholar, not even a lawyer I don't think, to get his argument.  But it's glib.  Too often trimming a bush  and declaring the forest cleared.  

On the other hand, based on the blurbs from some respectable and prominent originalists who seem to think the book brilliant, maybe the problem is that I'm not sufficiently of the choir to which he's preaching.

 

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*Juries, too, but less often and in any case they aren't relevant to where I'm going with this.

**The title is taken from a letter James Madison wrote to Thomas Jefferson.

***Wurman acknowledges that there's a strain of originalism that reads the Constitution more broadly than he does.  Having acknowledged the fact, he then pretty much ignores it.

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My thanks to Cambridge University Press for sending me a copy to review.

I Rant, Too, But I Don't Get Royalties

There's a terrific short story by Lionel Trilling called "Of this Time, Of That Place."  It's about a young English professor (Howe) who, at one point, is speaking with a student (Blackburn) to whom he's given a richly deserved F on an examination.  They begin with a review on his comments about Coleridge's Rime of the Ancient Mariner.

Blackburn's eyebrows went up. From the height of a great and firm-based idea he looked at his teacher. He clasped the crags for a moment and then pounced, craftily, suavely. "Do you mean, Doctor Howe, that there aren't two opinions possible?"
It was superbly done in its air of putting all of Howe's intellectual life in the balance. Howe remained patient and simple. "Yes, many opinion are possible, but not this one. Whatever anyone believes of The Ancient Mariner, no one can in reason believe that it represents a -- a honey-sweet world in which we can relax."
"But that is what I feel, sir."

Kahlil Gibran, that misty and vacuous prose-poet whose works seem profound to generations of 15-year-olds pining for kumbaya-truths (love, peace, harmony) that ease the pain of actually confronting the complexities of the world, wrote in Sand and Foam

We shall never understand one another until we reduce the language to seven words.

Which, if you think about it, is pretty stupid.

I mean, it sounds good.  Simplify. Clarify. Let's all get on the same page.

The problem isn't agreeing about which words.  Pick any seven you like.

Either we couldn't say anything at all because there's no vocabulary for it - which wouldn't increase understanding a bit. Or we could say anything we'd like but nobody could understand it because each of us would be our own Humpty Dumpty.*those words would have so many possible connotations it would be impossible to do more than guess wildly at meaning.

When I was in law school, I had a professor whose response to every question from a student was to fling both hands up in the air in a gesture of uncertainty and say,

How the hell should I know?

Drove most of the class crazy, but of course, he was right. The correct answer to every legal question is, as I've said before,

It depends.

Unless, of course, you're a true believer. Perhaps Blackburn, say, who finds in Wordsworth

a rebel, a bringer of light to suffering mankind. I see him as a kind of Prothemeus [sic].

Or Gibran or Humpty Dumpty.

So you should immediately be suspicious when Nino (that's Associate Justice of the United States Supreme Court Antonin Scalia) carries on.

U.S. Supreme Court Justice Antonin “Nino” Scalia says it is “easy” to rule on cases involving the death penalty and legalization of abortion, issues which have been cause for soul-searching among other judges at all levels of the court system.
Scalia was recently discoursing before an American Enterprise Institute audience on being a self-described “textualist” who believes the U.S. Constitution should be interpreted exactly as written and intended by the Founders more than 200 years ago.
“The death penalty?  It’s easy.  Give me a break.  It’s easy.  Abortion? Absolutely easy,” Scalia told the AEI faithful.

Scalia, of course, has a putative framework for discovering the simplicity in those issues.  It's his version of originalism. He's referred to it, on occasion, as "faint-hearted."
Scalia, after all, has acknowledged more than once that if originalism leads to a result that offends too deeply, he'll blow it off.  And he admits that he believes in stare decisis (except when he doesn't) so that he'll vote against his originalist views if the alternative has been the law for a long time and he doesn't find it particularly offensive even if it is unconstitutional which he's really really serious about except when he isn't.

I've written about these things before, of course.  Most recently, I did it here. A couple of weeks before that, I wrote this about Scalia.

In other words (and again, Scalia admits this from time to time, though in language less stinging and admitting of less hypocrisy than what I'm about to write), his approach is to rigorously adhere to the original text and meaning of a constitutional provision or statute so that his personal and political preferences will have no effect on his decision.  Except that when his personal and political preferences conflict strongly with his understanding of the original text and meaning, he goes with preferences.
To do otherwise, actually to judge with integrity, he has not quite said, is to be Clarence Thomas.  And unlike Thomas (and this he has said), he's not nuts.

By those standards, Adam Freedman is nuts.

Freedman is the author of a new screed, The Naked Constitution: What the Founders Said and Why It Still Matters.  The distributor offered me a copy to review and I foolishly accepted because I'm a sucker for this sort of thing.  But frankly a book that just preaches to its choir, when the memboers of that choir aren't likely my readers, well . . . .

Anyway, here's the thing.  Freedman says what Scalia and all the originalists and textualists, and ballsandstrikesists and justapplythefuckinglawists all say.  The Constitution means only one thing.  What it meant before or what the words mean or what the authors of the Federalist Papers said it means (except when they disagree) or what Ronald Reagan said it means except that we have to rewrite what he said because he was a secret closet radical socialist which we absolutely deny by refusing actually to consider what he said and did but only what his iconography looks like or what your uncle Jake thinks it meant or your local Kleagle or . . . .

And that thing, what they all think it means, is some single, readily identifiable thing.  It's absolutely unambiguous.

The Constitution says that the federal government can do A, B, C, and D.  It can't do anything else because it can't do anything that isn't explicitly authorized.  Or it can do whole shitloads of stuff because it can do anything that isn't explicitly prohibited.  And the people have exactly the rights identified in the Constitution and Bill of Rights and no others.  Except for all those rights which they have regardless of what the Constitution and the Bill of Rights says because the Ninth Amendment says so.  But because it doesn't identify them, they don't exist unless someone identifies them.  And that someone must be the Supreme Court or it cannot be the Supreme Court, depending on just what you believe.

Freedman's version is the cramped one.  The one favored by Scalia (except when he abandons it or blows it off).  The one that says the federal government has those powers specifically given to it by the Constitution.  That those powers are to be read very narrowly, so that if it's possible to understand the Constitution as not having specifically authorized something, you should understand it that way.
The Bill of Rights is absolute, but only prohibits the things it specifically prohibits.  People understood that they had lots more rights, which is why they insisted on the Ninth Amendment, which guarantees all of them.  But since the Ninth doesn't enumerate those rights, they don't exist unless some state chooses to offer them. (I'm only being a little unfair.)
Consider, for instance, the Free Exercise Clause of the First Amendment. It's the second part of the amendment's opening clause.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Congress can't stop you from practicing your religion, even if it involves something we don't approve of, like taking peyote, say, or engaging in plural marriage.  Except the Supremes said that it can.  First they said that Congress can interfere away as long as it had a compelling reason.  Then they said it can as long as the reason wasn't to single out the religious practice.  The latter was the holding in the peyote case (Employment Division v. Smith).  See, Freedman says, these things are just wrong.  Because "no law" means "no law."  Cannot do it.  No way, no how.  Absolute prohibition.

Had the Smith Court consulted original meaning - as Justice Scalia normally does - it could never have invented a neutrality exemption for infringements of free exercise. Granted,there must be some limits to religious ritual - human sacrifice is probably out of bounds - but the Founders had a strong bias against government-imposed limits.

There are several things to say here.  First, Freedman is right about a claim he almost but doesn't quite make: Smith was wrongly decided.  The neutrality principle is nonsense since it allows Congress to basically prohibit any religious practice as long as it doesn't claim to be doing that.
Second, Freedman wants to have it both ways.  The prohibition on interfering with free exercise is absolute, except that it's OK to interfere with free exercise if the religious exercise is sufficiently problematic because, well, gee, if it's really absolute then people can do anything if their religion tells them to. 
Third, it's not at all clear that the original understanding of the text of the First Amendment (which is what Freedman says you have to look at) would support the view that Congress couldn't prohibit a Native American religious ceremony that included the taking of prohibited anything.  Why?  Because while the original understanding was that Congress couldn't interfere with the exercise of any Christian religion, there was no such understanding about non-Christian ones.  Certainly not about Pagan ones.
The point isn't that Freedman's being hypocritical.  (Though he often is.)  It's not even that his historic understanding is built on finding someone who agrees with the result he wants and quoting and relying.  (Though his history is too often built on the approach too often seen in second-rate high school debate teams. "I have a quotation from an expert, so I've proved it."  You know, there's always an expert. And a quote.)
The problem is that parsing doesn't work the simple-minded way that Freedman insists it does.  Yes, the original understanding of the Free Exercise Clause was that the feds couldn't interfere with the free exercise of religion.  But no, the original understanding of the Free Exercise Clause wasn't that the feds couldn't interfere with the free exercise of religions other than Christian ones.  Maybe.  Maybe not.
But which question are you going to ask?
It's true that the Constitution doesn't explicitly protect privacy, or the right of married couples to use contraception. But why should the Ninth Amendment's guarantee of other rights not include any unless some state decides to adopt it.  Sure, Justice Douglas's airy pronouncement about the "penumbras" of the Bill of Rights was silly.  But it was also exactly right.  When you look at the First, Third, and Fourth Amendments, it's clear that there's an area of private thought and action and place and property that government's supposed to respect.  If you understand the Bill of Rights to protect as little as possible, you probably don't care.  If you understand it to protect as much as is plausible, then there is in fact a zone of privacy and then the question isn't whether some state chooses to declare something within that zone but whether there's a compelling reason for keeping it out.
As I said when last I wrote about originalism,

[E]very exercise in interpretation is an exercise in making it up.

That's as true when interpretation is described as discovery of some sort of originalism as it is when interpretation is free wheeling.  Depending on how you ask the question, and exactly what question you ask, you get the answer you want.
Freedman, like Scalia (and Thomas and Robert Bork and, yes, Earl Warren and Thurgood Marshall and, to tell the truth, John Marshall) asks questions and pursue answers that mostly lead him to answers he likes.  That's generally how it works.  It's not hypocrisy.  But it's delusional to believe that they get there by altogether neutral application of altogether neutral principles and analyses.
There's another point, too. That second part of the subtitle

and Why It Still Matters

Here's why, according to Freedman (and no, he doesn't actually say this, but it's implicit): The interpretation of the constitution Freedman favors, he believes not only to be truer to the vision of the founders than the interpretation he sees liberals favoring (and my god, he has this incredibly expansive view of what "liberals" believe and insists that all liberals buy into all of it).  He also thinks it's better.
Here's the bottom line.  There's a lot to be said against free-floating interpretations of the Constitution.  Rigid insistence that there's a single, proper, originalist interpretation that any determined fool can (and does, by the way) discover isn't it.  There's nothing thoughtful or nuanced or careful about Freedman's book.  It's a rant.  Set up straw man.  Knock straw man down. Declare victory over straw man who's declared to be a liberal who favors socialism and thinks everyone should have abortions.  At government expense.  All the time.
Of course, if you agree with him to begin with, it'll sound very reasonable and logical.
It isn't.



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* From, of course, Through the Looking Glass.

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'

Interpreting the Constitution - Part VII: Scalia

So Richard Posner thinks Antonin Scalia and Bryan Garner are intellectually dishonest.  (Really, he means Scalia, but given the context he has to accuse Garner, too; in the event, Garner belongs there, too, just less interestingly and less importantly.)
Posner, of course, is Judge on the Seventh Circuit Court of Appeals.  Scalia Justice on the Supreme Court.  Scalia's job is to grade Posner's papers.  Posner's avocation is to tweak Scalia's.
The subject here is Scalia's asserted approach to constitutional and statutory interpretation, an approach he sometimes calls "textualism" and other times "originalism" though they're not actually the same thing.* Scalia's been arguing about this for years, of course.  And he's now got a new book with Bryan Garner, Reading Law: The Interpretation of Legal Texts where the two of them try to make the case for it as the only proper way for judges to act.  
By relying strictly on strict reading of texts according to their original meanings, Scalia and Garner argue, judges are able to put their own prejudices aside.  They cannot invent the law or change it, merely apply what was previously created.  In that limited way, it's close to the balls and strikes model that John Roberts foolishly endorsed at his confirmation hearings and that all who've come after him (Alito, Kagan, Sotomayor) claim to endorse, though none of those Justices claim to be textualists or originalists.  And, indeed, there's virtually nothing in any of their opinions to suggest that any of them think either is a proper model for judging.
In fact, and for all his insistence that it's the only way to go, Scalia occasionally admits that he will abandon the textualist/originalist/whatever approach when he finds the results too repulsive.  And he believes in stare decisis, so that he supports in practice constitutional interpretations he rejects in principle if they've been around long enough and if he is not personally uncomfortable with the particulars of the improper reading.
In other words (and again, Scalia admits this from time to time, though in language less stinging and admitting of less hypocrisy than what I'm about to write), his approach is to rigorously adhere to the original text and meaning of a constitutional provision or statute so that his personal and political preferences will have no effect on his decision.  Except that when his personal and political preferences conflict strongly with his understanding of the original text and meaning, he goes with preferences.
To do otherwise, actually to judge with integrity, he has not quite said, is to be Clarence Thomas.  And unlike Thomas (and this he has said), he's not nuts.
Perhaps he's not.
But as Posner demonstrates with devastating detail and lip-smacking relish in his review of Reading Law (savaging might be a better term than review) in The New Republic, "The Incoherence of Antonin Scalia," and as I said in the first sentence of this post, Scalia's intellectually dishonest.  A few (too-lengthy, sorry) snippets.

So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined, and there are indeed a number of them (not much of a surprise, though, since he must have voted in at least two thousand cases as a justice of the Supreme Court). In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging ... the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. “In their full context,” they assert, “words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations.” That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.
. . .
Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne)that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.
. . . 
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
. . .
ANOTHER interpretive principle that Scalia and Garner approve is the presumption against the implied repeal of state statutes by federal statutes. They base this “on an assumption of what Congress, in our federal system, would or should normally desire.” What Congress would desire? What Congress should desire? Is this textualism, too?

He's a hypocrite.  He's intellectually dishonest.  Fair (or unfair) enough.  Posner's is a book review.  It's appropriate in context for him to explain that the book's argument is self-refuting and its supporting evidence and examples either don't actually support the argument or make it only if misrepresented.  And we know, from elsewhere in his writings (Posner is nothing if not prolific), and from comments in the review, that Posner thinks textual originalism is hopelessly muddled.  He writes, accurately,
Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
In 1985, speaking at a symposium at Georgetown Law School, Justice Brennan took aim at an earlier, and broader version of what Scalia (and Garner) propose.

There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant-that of the drafters, the congressional disputants, or the ratifiers in the states?-or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to "original intention"-and proposing nullification of interpretations that fail this quick litmus test-must inevitably come from persons who have no familiarity with the historical record.

Perhaps most importantly, while proponents of this facile historicism justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice. A position that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. It is far from clear what justifies such a presumption against claims of right. Nothing intrinsic in the nature of interpretation-if there is such a thing as the "nature" of interpretation- commands such a passive approach to ambiguity. This is a choice no less political than any other; it expresses antipathy to claims of the minority rights against the majority. Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance. 

Scalia's purported insistence on interpreting the Constitution and statutes based exclusively on what the words were understood to mean at the time of ratification or enactment is of course stifling.  It is particularly so in constitutional interpretation where he takes as a given that any right not specifically codified does not exist. That would seem pretty clearly to reject the words of the 9th Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Scalia has no coherent explanation for why the words of the Ninth Amendment are to be ignored by textual originalists except that they aren't specific enough to be applied.

Dammit Framers, get it right.  You left it up to us, and my approach forbids you to have done that.

Think that's too harsh? In Troxel v. Granville, the Court held that a Washington State statute that permitted anyone to ask a court for visitation rights to a child, and that the court should grant that request whenever it was in the child's best interest, unconstitutionally interfered with "the fundamental right of parents to make decisions concerning the care, custody, and control of their children."
Scalia dissented.

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men . . . are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

Which pretty much writes the Ninth Amendment out of the Constitution.
Scalia's attack on the straw dog of everyone who doesn't adopt some version of originalism is not without force.  The truth is that the Constitution and statutes, in fact, mean whatever five of the nine berobed ones say this week what they mean.  That's not because the five got it right but because they get to decide.  And then, when the composition of the Court changes, they get to decide something different.  That's our system.
And if the nine aren't tethered to something other than their own predilections, prejudices, and policy preferences, then the Constitution and statutes don't mean a thing.  They're just placeholders for the whims of the judiciary.  But Scalia's response is pure sophistry.  The problem isn't that he's intellectually dishonest in his defense or that he's a weak-kneed hypocrite in practice.  The problem is that what he proposes to do and claims (mostly) actually to do is impossible and undesirable.  
Rigid (some might say mindless) adherence to the text as it was understood by those who adopted/enacted/ratified it requires an historiographic linguistics we do not have. Consider District of Columbia v. Heller where every opinion rests on the language and text and history of the Second Amendment while disagreeing vehemently about what those things say.  (And, as Posner points out, Scalia's approach to the Constitution should have, if anything, forced him to switch sides.)
And it rejects wholly consideration of purpose and context.  Neither a statute nor the Constitution exists in a vacuum.  They had aims and points.  They contain ambiguities, intentionally or otherwise, that courts must resolve.  Scalia's claimed approach would deny the ability to resolve ambiguities or would result in doing exactly what the approach insists can't properly be done. If the latter, if the judge is to resolve the ambiguity, then the approach is hopelessly bankrupt for application to the real world.  If the former, as in Sclaia's approach to the Ninth Amendment, then the approach is inherently contradictory, rigidly adhering to the text while effectively rewriting it.



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*To oversimplify significantly, textualists look exclusively to the language of the statute or constitutional provision or whatever; originalists look to the original understanding of it.  There is, of course, significant overlap to the point where it can often seem that these are distinctions without a difference.

A Theory of Interpretation: Part I

There's the fixed Constitution (Scalia likes to call it "dead" when he's trying to be provocative, which is most of the time, e.g., here) that means today and forever what it meant when adopted, no more, no less, and especially no other. Then there's the living Constitution that grows and changes to keep up with the realities of the world and with current understanding. You can take those to be opposite poles if you like, though that really does a bit of disservice to both.

Most of the time, for most people, it doesn't matter which one we have or whether we have something else. Drive on the right side of the road. Pay your taxes. Read The National Enquirer or the National Review or the Nation. Shop at Krogers or Whole Foods. Visit the dentist or let your teeth rot. White meat or dark. Great taste or less filling. The Constitution won't make much difference to you. You don't mess with it, and it won't mess with you.

But of course it does matter, and in fundamental ways. Ohio is different from Texas, and the Constitution allows for those differences. The underlying idea of our federal system is that the states matter and, within limits, can do what they want and organize themselves as they wish. But the limits matter, too. So the Constitution is responsible for many of the ways Ohio is not different from Texas.

And the Constitution matters in visceral ways, on things that divide us sharply. Prayer in public school, affirmative action, abortion, gun control, the death penalty, child labor laws, the right to a jury trial, interracial marriage, the rights of the tea baggers to protest. Whatever your view of the Constitution, whether it's living or dead, vibrant or on life support, whether you think it should or not, the Constitution ends up having something to say about all those things.

And, of course, for those of us in the trenches of criminal law, and especially death penalty law, the Constitution is a daily concern.

I've talked a fair amount in these posts about Constitutional interpretation and I've tried to make sense out of the Second Amendment (here and here). What I want to do now is begin to sketch out an actual theory of Constitutional interpretation. The key word in that last sentence is "begin." I have a sense of where I'm going and how I hope to get there, but I'm far from clear about any of it. So see this as a work in progress, subject to tinkering and revising and complete changes of path.

Let's start with a couple of premises I think most of us would accept.

First, words matter. Language controls. We can't just make it up out of whole cloth. And we can't pretend that when the framers said "no law" they meant "lots of laws" or that by "prohibiting" they meant "permitting."

Second, what the framers had in mind, their original understanding of what this or that provision meant, makes a difference. Whether we're bound by what they thought may be contentious, but we can't fairly decide whether to be bound if we don't at least try to understand.

Perhaps an example will help. In a concurring opinion in Baze v. Rees, Justice Thomas argued that the Cruel and Unusual Punishment Clause of the Eighth Amendment ("cruel and unusual punishments [shall not be] inflicted") was understood and intended to prohibit the intentional infliction of torturous punishment. If pain was a by-product, so be it. You just couldn't set out to cause pain. The dominent understanding of the Eighth Amendment for the last fifty years is dramatically different. It derives from a plurality opinion in Trop v. Dulles where Chief Justice Warren set out a very different formulation.

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Whatever that means, and however it's applied, it's certainly not what anyone would say is the original understanding of what constituted a cruel and unusual punishment. Whether you favor one model or the other or some third thing, it's useful to know where it all began.

Third, despite what we occasionally pretend and despite some disagreement about just where, there are provisions in the Constitution that really aren't clear. The Fourth Amendment prohibits, among other things (or perhaps exclusively) "unreasonable searches and seizures." Regardless of whether it is only such searches and seizures that are prohibited, and regardless of what should happen when and if they occur, the term "unreasonable" does not carry a precise and universally understood meaning such that there can never be doubt or disagreement about whether a particular search or seizure does or does not fall within its prohibition.

Fourth, however much we may believe otherwise, we might be wrong. We could get the history wrong. We could think something clear that isn't. We could misunderstand a word. There is room for error.

OK. There's a start. Four premises:

1. The language matters.
2. The original understanding matters.
3. Sometimes it's not crystal clear.
4. We can be wrong.
   

What next?

A fourth premise, but a controversial one. The Constitution sets limits on the powers of government, both state and federal (those limits aren't the same, but that's not the controversial part), but it can still, and consistent with the first four premises, be viewed expansively.

This is what leads to the theory.

Justice Scalia's model of interpretation, like Justice Thomas's similar but different one, like not-Justice Robert Bork's, is grounded on the idea (and this is clearly my formulation, not any of theirs - I assume they'd all reject it) that whatever isn't specifically allowed or required by the Constitution is subject to the whim of the people as expressed through their elected representatives.

So, for instance, Miranda warnings are never mentioned in the Constitution. They represent a judicially crafted solution to a problem. While they reference and rely upon a number of constitutional concerns, the court made them up out of whole cloth. Whatever function they serve is gratuituous. The various states and the federal government should be free to develop whatever mechanisms they want to ensure that the rights sought to be protected by Miranda warnings are, in fact, protected.

Similarly, the Constitution says nothing about abortion. Therefore, abortion is neither prohibited nor allowed by it. States can authorize or prohibit at will. And within the scope of its general authority, so can the federal government.

I think that's nonsense. Oh, it's all grounded in the premises I accept, but it understands those premises in way too cramped a fashion. I wrote the other day about the sociological concept of the "total system" in which all behavior is controlled. In one of the series of Martin Beck police procedural novels by Maj Sjöwall and Per Wahlöö, one of the characters describes Sweden as a nation where "all things are either required or forbidden." That's not who we are.

The easiest example is the prohibition on cruel and unusual punishment. By its very language, the Eighth Amendment prohibition covers all punishments which happen to be "cruel and unusual," not merely those that were understood to be cruel and unusual at the time it was adopted. You cannot be both a textualist and an historical originalist. But that doesn't turn into ethereal whateverness, either. Yes, Scalia is right that it means that whatever five members of the Court think is cruel and unusual is. But that's so regardless of what constitutional interpretative model you take.

In Baze, Thomas and Stevens each wrote extensively about what the original understanding of the 8th Amendment was. They disagreed completely. Five votes wins on the Court. What they say, however they analyze things, is the law until there are five votes to say something different. The Constitution may be dead, but it can't be static.

The question is whether we read the words and their context broadly or narrowly. I think we read them broadly to effect the goals not of our approach to social engineering, but of the Constitution itself. I'll talk much more about that, and about why Breyer's approach to Constitutional interpretation (Active Liberty) is as hopeless as the originalist/textualist model, in Part II.