Politics
Monday, April 26, 2004
I want Gmail.
Tuesday, May 20, 2003
I welcome any comments about my paper.
I thought people might be interested in this paper I wrote about Justice Scalia. Enjoy.
Regarded by many as the most brilliant Justice on the United States Supreme Court, Antonin Scalia has achieved much repute for his witty and incisive opinions. However, he is especially recognized by many legal scholars as the leading proponent of originalism and textualism. In skeleton form, originalism in the manner promoted by Scalia is the doctrine of interpreting the Constitution and its Amendments in accordance with how it was originally understood at the time they were ratified. Textualism is the doctrine of interpreting the statutes in accordance with their simple meaning.
Justice Scalia is also well known as a proponent of narrow judicial discretion. To a large extent, people consider him an advocate of narrow judicial discretion because that doctrine correlates with originalism and textualism to a certain degree. If one believes that a judge should interpret the Constitution and statutes according to specific methodologies, then one also believes that judges are limited in their discretion by those methodologies. Conversely, if one believes in narrow judicial discretion, then one may want to limit judges in their interpretation of the Constitution and statutes to the confines of certain methodologies. As we can see, the cause and effect could work either way. However, there are other ways in which justices can exercise a great deal of discretion despite being bound by originalism and textualism, such as in common law. Accordingly, we can analyze Scalia’s view of judicial discretion by examining his approach to constitutional and textual interpretation and other areas of judicial activity.
In order to understand Scalia’s opinion regarding the role of judges, one must first appreciate what he considers the starting point of any discussion regarding their role: democracy. Before the advent of democracy, disputes would be brought before judges and they would decide what the law should be and was. In determining, or making, law when a dispute came before them, judges would fashion the rules that composed it. Then, a similar dispute would come before them, and they would either decide that the circumstances were such that the previously delineated rule should resolve the judgement in this particular case, or they would distinguish between the two cases and fashion a new rule for the case at hand and future cases analogous to this one. Common law was formed in this way because of the absolute prerequisite to common-law lawmaking: “the doctrine of stare decisis—that is the principle that a decision made in one case would be followed in the next.” As Scalia explains, this principle is of the utmost importance because “without such a principle common-law courts would not be making any ‘law’; they would just be solving the particular dispute before them.”
Imagine, then, how an aspiring judge, weaned on the case-law that comprises the common-law tradition, envisions a great judge: “the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case to the left, straight-arming another on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law.” This depiction by Scalia becomes increasingly important not only as we scrutinize the manner in which he distinguishes constitutional and statutory interpretation from the common-law method, but also when we analyze how he approaches common law itself.
But along came democracy. Or, as Scalia puts it in his understated manner, “[a]ll of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy.” Although Scalia has no problem with common law per se, he objects to the transplantation of the common-law lawmaking process onto statutory and constitutional interpretation. In other words, some judges view their roles as finding the most desirable outcome and then concocting some way—any way—of reaching their goal. However, the game has changed. They are bound by more than stare decisis. Their ostensible task in most cases is to interpret statutes or the Constitution, and, as such, they must deal with the pertinent text before they can reach their goals. Unfortunately from Scalia’s point-of-view, they do not allow themselves to be hindered by the text; the text is simply to be twisted this way and that until good law has been made. Understandably, Justice Scalia considers this common-law approach to conflict with democracy. If the representatives of the people enact a law and judges in effect ignore it and instead fashion the law in accordance with their own principles, it seems as if the will of the people and, therefore, democracy have been stymied.
Naturally, many judges do not take a common-law approach to the interpretation of statutes and the Constitution. Nevertheless, Scalia believes that some judges utilize other methods of interpretation that do not accord with democracy. Let us focus, for the moment, on statutory interpretation. Oftentimes, one finds it said in judicial opinions “that the judge’s objective in interpreting a statute is to give effect to ‘the intent of the legislature.’” In reply, Scalia asks why a judge should concern himself with what the legislature intended rather than what it said, that is, the statute that the judge is interpreting. The corollary of democracy, and even fair government, is the governance of law, not the intent of the lawgivers.
Moreover, to return to common-law lawmaking, the search for the intent of the legislature facilitates the establishment of the personal preferences of judges as law. It is inevitable that “under the guise or even the self-delusion of pursuing the unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires.”
In contrast to the common-law approach to statutory interpretation, Scalia supports the philosophy of interpretation known as textualism. Textualism, Scalia is at pains to stress, should not be confused with strict constructionism. A statute should not be construed literally, nor should it be construed liberally: “it should be construed reasonably, to contain all that it fairly means.” Once more, democracy steers him, this time towards textualism. To construe statutory texts in a way other than what it reasonably means is to thwart democracy and the laws it has wrought. If, as Scalia maintains, judges are supposed to interpret a statute in accordance with its reasonable textual meaning, judges must have a method for determining its reasonable textual meaning. Scalia argues, firstly, that “[w]ords do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.” Furthermore, there are rules of interpretation labeled the canons of construction, with which textualism is closely associated. Most of the cannons are simply common sense. There are too many canons for them to be listed here, but one example is the following: Expression of one is exclusion of the other. Simply put, if a statute states that brown-eyed people must pay five dollars to the federal government, we know that blue-eyed people do not need to pay five dollars.
Similar to his technique for interpreting statutes, Justice Scalia approaches the Constitution with the objective of ascertaining its meaning at the time of adoption. The techniques are similar in that what he wants for both statutes and the Constitution is reasonable construction, not strict or lenient construction. Specifically, he interprets the Constitution as it was originally understood, that is, as its components were understood at the times of their respective ratifications. However, he does not concern himself with the intentions of those who wrote and approved the Constitution and Amendments, just as he does not allow the intent of the legislature to control his construal of a statute. What he does inquire into is the general understanding of the Constitution and Amendments at the times of their adoption. Consequently, he give equal weight to the writings of John Jay and Thomas Jefferson, who were not delegates to the Constitutional Convention and thus not Framers of the Constitution, and to the writings of Alexander Hamilton and James Madison, who were delegates and Framers.
This approach to the Constitution, which does not allow for construing a gradual change in the meaning of the Constitution, stems from democracy. “If courts felt too much bound by the democratic process to tinker with statutes”—a feeling Justice Scalia shares—“when their tinkering could be adjusted by the legislature, how much more should they feel bound not to tinker with a constitution, when their tinkering is virtually irreparable.” As a practical matter, Scalia’s constitutional methodology provides guidance for a judge in interpreting a constitution. Those who believe that the Constitution evolves and its meaning changes over time, on the other hand, have no guidance whatsoever in determining the direction of the Constitution’s evolution. As a group, proponents of the evolutionary Constitution, or The Living Constitution, “follow nothing at all.” Obviously, proponents of originalism, as Scalia designates his method, do not always agree. But at least they know what they are looking for: the original meaning of the text.
Despite the knowledge possessed by textualists and originalists as to their ultimate objective, a judge can deal with his written opinion in different ways when interpreting the Constitution and statutes. In deciding a case, a judge formulates a mode of analysis that he applies to this case and, presumably, will apply to future cases. In addition, lower courts are bound by the “holdings” of higher courts, so they, too, will be forced to utilize the mode of analysis constructed by higher courts. “And by making the mode of analysis relatively principled or relatively fact-specific, the court can either establish general rules or leave ample decisions for the future.” The former mode confers discretion to judges for future cases, whereas the latter establishes general rules of law. Scalia concedes that the discretion-conferring approach has the advantage of allowing for perfect justice, since all generalizations have exceptions. As such, supporters of the discretion-conferring approach view the development of law as a gradual process in which questions of law are addressed on a case-by-case basis according to the specific details of each case.
While the value of perfect justice in judicial opinions should not be made light of, neither should it be overrated, Scalia reasons. A value that sometimes obstructs the search for perfection is the appearance of equal treatment, which is quite a “motivating force of the human spirit.” To illustrate this point, Scalia gives a humorous example: “Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no television in the afternoon, no television in the evening, or even no television at all. But try to let one brother or sister watch television while the others do not, and you will feel the fury of the fundamental sense of justice unleashed.” And for a system of justice to be respected, it is important that when one case is decided differently from another, the two be seen as different in their attendant characteristics. As a result, Scalia prefers that there be a previously articulated clear, general rule to which a judge or court can point in deciding one case differently than another, even if the general rule causes the inevitable distortion of judicial perfection.
Furthermore, in terms of practicality, the judicial system in the United States naturally suggests the general-rule approach. In the United States, there is a hierarchy of courts, with the lower courts bound by the decisions of the higher courts, and the higher courts, especially the highest court, examine an insignificant portion of all the cases in the judicial system. Therefore, the ability of higher courts to provide guidance to lower courts through the discretion-conferring approach—only addressing the case at hand with exclusive reference to its distinct details—is greatly restricted. As a result, use of the discretion-conferring approach would lead to non-uniformity in the law.
From the issue of practicality, Justice Scalia reaches a fundamental reason for disapproving of the discretion-conferring approach: the Rule of Law. “Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes.” Unpredictable law is not worthy of the name “law.” And this unpredictability allows judges to run amuck and decide cases according to their political preferences, since their previous rulings do not constrain them even for very similar cases. By promulgating general rules, judges hedge themselves and lower-level judges in, and by hedging themselves in, they embolden themselves when a future case requires that they swim against the tide of popular will: they can simply adduce their previously expressed rules, which compel them to rule in the correct manner so that the judicial system not become a farce.
Michael H. v. Gerald D. provides a fitting example of how Scalia’s affinity for his conception of the Rule of Law affects his opinions and the modes of analysis that he employs in reaching his conclusions. Although more complicated and more worthy of a soap opera in all the details of the case, the issue in Michael H. is relatively simple. A man, Michael H., had an affair with a married woman, Carol D., which resulted in the birth of a daughter, Victoria D. “Although Gerald was listed as father on the birth certificate and has always claimed Victoria as his daughter, blood tests showed a 98.07% probability that” Michael was Victoria’s father. California refused to grant Michael a parental relationship with Victoria. He argued that through substantive due process he had a constitutionally protected “liberty” interest in a parental relationship with Victoria. In Michael H. v. Gerald D., the Supreme Court denied him a parental relationship with Victoria.
However, the Court was divided as to the specific reason for refusing Michael’s claim. One of the Justices in the majority, Justice Stevens, “would not foreclose the possibility that a constitutionally protected relationship between a natural father and his child might exist in a case like this.” Nevertheless, he felt that California had provided the requisite opportunity for the father to exercise his constitutionally protected right.
The four other Justices in the majority, on the other hand, were of the opinion that there was no such constitutional right, that is, a constitutional right for the biological father of a child born in an affair with a married woman to have a parental relationship with that child. They based their refusal to recognize that right in the Due Process Clause of the Fourteenth Amendment on the lack of a tradition in the United States of considering it a fundamental interest and of protecting it.
Dissenting, Justice Brennan, joined by two Justices, criticized the plurality’s concern for historical traditions relating only to the rights of an adulterous natural father rather than inquiring more generally “whether parenthood is an interest that historically has received our attention and protection.”
Justice Scalia responded in a footnote to this specific criticism. Interestingly, two of the Justices who had joined in his opinion, Justices Kennedy and O’Connor, refused to join in the footnote. Only Chief Justice Rehnquist joined in the footnote. In the footnote, Scalia maintained that judges should infuse the Due Process Clause with rights according to the most specific tradition available. “The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference—or at least to announce, as Justice Brennan declines to do, some other criterion for selecting among the innumerable relevant traditions that could be consulted—is well enough exemplified by the fact that in the present case Justice Brennan’s opinion and Justice O’Connor’s opinion, which disapproves this footnote, both appeal to the tradition, but on the basis of the tradition they select reach opposite results.” The immediate objection is, what is wrong with arbitrary decisionmaking by judges, as it allows them some choice when the unanticipated occurs? “Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.” Once again, the Rule of Law determines Scalia’s methodology. Some might argue, however, that the most specific tradition as a standard is infinitely malleable and thus distinguishes itself not at all in effect from a lack of standard. But that is beside the point. Justice Scalia believes that the standard of the most specific tradition available meaningfully restricts judges, and he adopts it as the standard because of the Rule of Law. Accordingly, another piece of the puzzle, that is, the bases of Scalia’s methodology, falls into place
In the course of discussing the pros and cons of the two approaches to decision-making, Scalia makes a strange comment. “I had always thought that the common-law approach [i.e., the discretion-conferring approach] had at least one thing to be said for it: it was the course of judicial restraint, ‘making’ as little law as possible in order to decide the case at hand.” Whereas, as we have seen thus far, Scalia grounds his support for other strictures on judges on either democracy or the Rule of Law, he gives no basis for this praise for what he thought was the case. He seems to favor judicial restraint for its own sake. The question is, why would he do such a thing? After all, he should have no objection to “making” more law rather than less as long as judges are “making” law within the boundaries of their role. The role of judges vis-à-vis constitutional and statutory interpretation is to interpret the Constitution and statutes according to their original meaning and their simple understanding, respectively. This role does not seem to require that judges shrink from utilizing broad principles in coming to a resolution in textual interpretation, and thereby “making” more law. As we shall see, this statement by Scalia is an anomaly in his support for narrow judicial discretion.
Justice Scalia also takes issue with certain judicial traditions in the interpretations of statutes. These include the “rule of lenity,” which says that any ambiguity in a criminal statute must be resolved in favor of the defendant; the rule which says that ambiguities in statutes dealing with Indian rights are to be resolved in favor of the Indians; the rule that statutes in derogation of the common law are to be narrowly construed; and the rule that “remedial statutes” are to be liberally construed to achieve their “purposes.” It is not that he is violently anti-criminal, vehemently anti-Indian, or intensely opposed to common law or remedial statutes. Rather, these rules pose two problems for a textualist. As a practical matter, these rules make the job of judges infinitely harder. Not only must the judge ascertain the reasonable meaning of the text; he must also figure out how ambiguous a statute must be before the rule of lenity is triggered, and then how leniently he should interpret the text; how ambiguous a statute dealing with Indian rights must be before the “ambiguity” should be resolved in favor of the Indians; how narrowly statutes in derogation of common law should be construed; and how liberally remedial statutes should be interpreted. As a theoretical matter, “there is also the question of where the courts get the authority to impose them.” However, some rules are basically common sense, and the rule of lenity is validated by sheer antiquity.
Because the rule that remedial statutes are to be liberally construed affords judges such expansive discretion, it is useful to examine Justice Scalia’s attitude towards it. First of all, it qualifies as one of his “most hated legal canards,” and it “is surely among the prime examples of lego-babble.” Specifically, there is the matter mentioned above, that “liberally” gives no actual guidance in interpreting a statute. But this rule possesses a distinctive, spectacular flaw: “What makes this rule unique is that there is not the slightest agreement on what its subject—the phrase ‘remedial statutes’—consists of.” As a result, there is also no consensus on what a remedial purpose of a statute is. Scalia covers various explanations of what a remedial statute is. Suffice it to say that a judge could have considerable discretion in interpreting a statute by simply asserting that a statute is remedial and should be construed liberally so as to achieve its purpose.
A recent case that has garnered much press calls attention to Scalia’s aversion to liberally interpreting remedial statutes. Casey Martin was a talented golfer who, as an amateur, won 17 Oregon Golf Association junior events before he was fifteen and won the state championship as a high school senior. “As a professional, Martin qualified for the NIKE Tour in 1998 and 1999, and based on his 1999 performance qualified for the PGA Tour in 2000.” However, he also was disabled as defined in the Americans with Disabilities Act of 1990 (ADA). Afflicted since birth with Klippe-Trenaunay-Weber Syndrome, a degenerative circulatory disorder that obstructs the flow of blood from his right leg back to his heart, Martin could not walk an 18-hole golf course. He requested a waiver of the PGA Tour’s rule disallowing the use of carts by competitors on the golf course; the PGA Tour refused his request. He then filed an action claiming that the PGA Tour was required under the ADA to accommodate his disability with the use of a cart.
There were many issues involved in the case, but a basic one was whether the competitors in the PGA Tour were considered customers and therefore covered by a certain section of the ADA. The Supreme Court held that they were considered customers under the ADA. Scalia dissented, arguing that Casey “was not a customer buying recreation or entertainment; he was a professional athlete selling it.” All in all, he gave a fairly convincing argument that professional golfers are not considered customers in the normal sense of the word. In discussing Scalia’s dissent with a legal scholar, I insisted that it followed logically from Scalia’s textualism: “customer” does not reasonably include professional golfers. The legal scholar responded that the ADA was a remedial statute and, as law students learn in their first year, remedial statutes are to be interpreted liberally to accomplish their purpose; consequently, Scalia could have interpreted “customer” liberally. The scholar seemed to be following the script of the majority opinion in the case: “Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.” Of course, if a remedial statute is simply a statute that remedies an evil, as the quotation implies, then all statutes are remedial. But Scalia refused to utilize this “legal canard,” one which would have given him the discretion to ignore the simple meaning of the text.
Justice Scalia’s restrictions on judicial discretion in deciding common law share characteristics with his restrictions on judicial discretion in constitutional and statutory interpretation. His distinction between general rules and personal discretion and his preference for the former apply equally to judicial decisions dependent on common law. A judge can just as readily explicate an issue of common law with a general rule as with a fact-specific rule which would leave ample discretion for future cases. The same basic issues that this dichotomy raises for constitutional and statutory interpretation are raised for common-law lawmaking. In particular, the Rule of Law issue is present because the discretion-conferring approach to common law does not give people governed by common law the knowledge of what it prescribes. Of course, the ability of an originalist and textualist to formulate general rules may be simpler for constitutional and statutory interpretation than for common-law exposition. Scalia points out that it is easier for him than for non-textualist “to develop general rules, because I am more inclined to adhere closely to the plain meaning of the text.” Similarly, in constitutional interpretation, to develop general rules is easier for him than for non-originalists because “[t]he raw material for the general rules is readily apparent.” However, these facilitators are not available in common law, thus making the development of general rules more difficult.
Just as the Rule of Law constitutes the basis of Justice Scalia’s advocacy for general rules of law by judges, it also formed the basis of his dissent in Rogers v. Tennessee. Wilbert K. Rogers stabbed James Bowdery with a butcher knife. After surgery to repair the wound to his heart, Bowdery slipped into a coma. Approximately 15 months after the stabbing, he died. The jury found Rogers guilty under Tennessee’s criminal homicide statute, which makes no mention of the “year and a day” rule. “At common law, the year and a day rule provided that no defendant could be convicted of murder unless his victim had died by the defendant’s act within a year and a day of the act.” Rogers appealed to the Supreme Court of Tennessee, and contended that the year and a day rule precluded his conviction. The court “found that the original reasons for recognizing the rule no longer exist.” Accordingly, the court abolished the rule as it had existed at common law in Tennessee. Rogers then appealed to the United States Supreme Court with the claim that Tennessee had denied his right of due process of law in violation of the Fourteenth Amendment by the state court’s ex post facto repeal of the common law rule. The Supreme Court disagreed, arguing that the Due Process Clause incorporated the Ex Post Facto Clause, but the Ex Post Facto Clause only forbade ex post facto action by state legislatures. Other than this incorporation, the Due Process Clause bars no other ex post facto action.
Justice Scalia dissented stridently. “Today’s opinion produces…a curious constitution that only a judge could love. One in which (by virtue of the Ex Post Facto Clause) the elected representatives of all the people cannot retroactively make murder what was not murder when the act was committed; but in which unelected judges can do precisely that.” In his view, the Court’s decision violated the long-held principle encapsulated by the maxim nulla poena sine lege. The question for the court to answer was simple enough: what does due judicial process consist of? “[A]nd it does not consist of retroactive creation of crimes.” He quoted Madison, who wrote that “ex-post-facto laws…are contrary to the first principles of the social compact, and to every principle of social legislation.” All of this alludes to, and is part of, the core issue: the Rule of Law. If unpredictability vexes Scalia, a fortiori the retroactive revision of law should vex him.
Clearly, Justice Scalia opposes the development of common law in a way that conflicts with the Rule of Law. However, another matter is of paramount importance: how he supposes common law should develop generally. Norfolk Shipbuilding & Drydock Corporation v. Celestine Garris sheds some light on the topic. Scalia wrote the Court’s opinion. The specific facts of the case are irrelevant. Three of four issues in general maritime law, that is, in common law dealing with maritime law, had been settled prior to Garris. One, general maritime law imposes duties to avoid unseaworthiness and negligence. Two, nonfatal injuries caused by the breach of either duty are compensable. Three, death caused by breach of the duty of seaworthiness is also compensable. The fourth issue was the question before the Court: “whether death caused by negligence should…be treated differently.” From 1886 until 1970, general maritime law did not provide relief for wrongful death from any breach of maritime duty, as established by The Harrisburg, which said that this rule was compelled by existence of the same rule at common law. However, the Supreme Court overruled The Harrisburg in Moragne v. States Marine Lines, Inc., declaring a new rule of maritime law: “We…hold that an action does lie under general maritime law for death caused by violation of maritime duties.” Moragne was not limited to any particular maritime duty, but the facts of Moragne were limited to the duty of seaworthiness. The principle behind Moragne was, “Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death.” Therefore, Scalia argues, there is no rational basis for not extending a federal remedy to death caused by unseaworthiness. That precedent compels the extension is important because Scalia believes that since Congress has extensive involvement in legislating causes of action for maritime personal injuries, it is the better course for courts to leave further development to Congress. When precedent compels further development, however, courts should recognize the compelled development. Accordingly, Garris gives us a partial understanding of Scalia’s approach to the development of common law in contemporary times, when Congress has its hands in many areas of law.
Crucially, Justice Scalia’s approach to common law demonstrates the following: It can be said regarding him in an accurate sense that he could never have been a common law judge. For the longest time, common law has been viewed contrariwise than the depiction of which Scalia would approve. As Scalia himself acknowledges, common-law judges worked in a fashion antithetical to democracy. But he would have us believe that once democracy achieved dominion, common-law lawmaking ended, whereas it fairly clearly continued. In any event, Scalia regards what in actuality has been common-law lawmaking with disdain, thus barring the possibility that he could have ever been a true common-law judge.
For the purpose of elucidation, it is constructive to contrast Scalia’s view of judicial discretion with those of Benjamin Cardozo, a former Supreme Court Justice, and Ronald Dworkin, a renowned legal scholar. In The Nature of the Judicial Process, Cardozo focuses on common law. He states that there are four basic methods utilized by judges in the judicial process. First, there is the method of philosophy, or logic. This involves deducing from precedents the principle of law to be followed and then applying it to the case at hand as the judge considers it applicable. As Cardozo puts it, the judge “must first extract from the precedents the underlying principle, the ratio decendi; he must then determine the path or direction along which the principle is to develop, if it is not to wither and die.” What makes the former part of the judge’s task so difficult is that much of what has been stated by judges in previous cases was unessential to the purpose of deciding the cases. Consequently, the judge must look at the essential statements contained in precedent and uncover the principle behind them. In proceeding from the principle, the judge may follow the principle’s logical progression, and thereby utilize the rule of analogy, which is the method of philosophy.
Another way of developing the discovered ratio decendi is the method of history, or evolution. This is not to say that the method of philosophy always conflicts with the method of history. However, sometimes the logical progression of a principle viewed in isolation from its historical milieu diverges from the development of the principle once the historical environment of the principle has been taken into account. It is not that the method of history confines legal principles to anachronistic situations. “I mean simply that history, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.” In order to develop certain principles truly logically, judges must be mindful of the origins of the principles. However, “[i]f history and philosophy do not serve to fix the direction of a principle, custom may step in.” Although tradition was installed in common law as new rules in times much earlier than Cardozo’s, by his time judges looked to tradition mainly for the purpose of determining how to apply established rules.
The method of sociology dominates all these methods, because “[t]he final cause of law is the welfare of society.” Of course, judges cannot cast aside existing rules at will, but “when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction, and its distance.” However, this does not mean that judges should ignore the other methods, which help law attain uniformity, consistency, and certainty. But there are gaps in common law, “within which judgement moves untrammeled.” In filling these gaps, the method of sociology concerns itself with the welfare of society. Regrettably, there seems to be an implicit inconsistency within Cardozo’s system of the four methods. If there are gaps within which judgement moves untrammeled by the first three methods, then in what sense can the method of sociology dominate them? Furthermore, it is hard to believe that custom always fails to give some guidance when there are gaps in common law. Clearly, then, Cardozo would give preference to the welfare of society over custom. Despite Cardozo’s denials, one senses that as long as extending the rules according to the way that one thinks will better the welfare of society does not conflict egregiously with the logical extension and the historical nature of the rules, then the method of sociology dictates the development of common law.
Scalia, on the other hand, would consider a deviation from logical development—and the method of history probably allows for truly logical development, as Cardozo points out—a contravention of the Rule of Law. He objects to unpredictability, and a deviation from logical progression constitutes unpredictability. Scalia would also object to Cardozo’s support for the use of the method of sociology in the gaps of statutes—gaps that are admitted by Cardozo to be relatively small. Scalia objected, in Garris, to the development of common law in an area in which Congress legislated extensively. Surely, he would object to judges filling the small gaps in statutes in any way, since small gaps in statutes should be considered areas in which Congress has legislated extensively. On a final note, Cardozo states that “the content of constitutional immunities is not constant, but varies from age to age.” This proposition meets with Scalia’s vehement opposition, but an exact discussion of the dispute should wait until Scalia’s type of originalism receives further explication through it contrast with Ronald Dworkin’s approach to statutory and constitutional interpretation.
Dworkin distinguishes between what a legislature intended to say in the laws it enacted and what the various legislators expected or hoped the consequences of those laws would be. He calls the former semantic intent and the latter expectation intent. He and Scalia agree that the job of judges is to seek the semantic intent of laws and not the expectation intent. Although Scalia agrees with the distinction, he “would prefer the term ‘import’ to ‘semantic intention’—because that puts the focus where I believe it should be, upon what the text would reasonably be understood to mean, rather than upon what it was intended to mean.” While this may seem to put them at odds, Scalia explains why that is not so. Because the import of language depends on its context, the evident purpose of its utterance plays a role in determining its import.
As to how judges should discover or construct the semantic intentions, Dworkin notes that “Scalia would not agree with my own opinions about these matters.” This assertion is quite correct. In Dworkin’s view, statutory interpretation begins with a search for the best justification for the entire statute, and, if possible, for the statute as a part of the system of other legislation in force. At first glance, this seems to accord with Scalia’s textualism given that this beginning is an attempt to explain the simple meaning of the text through a combination of principles and policies as the justification of the text. However, the following scenario should clarify the difference between the two. Suppose the simple meaning of the text implies that two specific principles are the basis of the statute, but the judge charged with interpreting the statute deems the two principles contradictory. Scalia would not care about the judge’s personal convictions regarding the alleged conflict within the simple meaning of the statute, and would charge the judge with following the allegedly contradictory principles. However, Dworkin might argue that following the simple meaning of the text in this case would not be the best justification of the statute as a whole.
In any event, Dworkin differs with Scalia in other aspects of his method of determining semantic intent. Dworkin looks to legislative history for guidance to some degree because what was stated during the legislative history of a statute affects how the public receives the statute and how they understand it. In contrast, Scalia denigrates the use legislative history. However, Dworkin so qualifies his example of utilizing legislative history—a situation in which there are uncontradicted statements during legislative debate and the public may have already acted on assumptions relating to the statements—that Scalia might even concur because, as he mentions, a text’s import depends on the context of its utterance. But there is one point with which Scalia undoubtedly disagrees. Dworkin believes that a judge should take into account the political history that has occurred after the passage of a statute. The reason for this is that he believes that judges should give the best justification for the entire history of the statute. Scalia only agrees with Dworkin as much as he does without taking into account post-passage events because he cares about the context of the statute’s utterance, but post-passage events cannot affect the context of the past utterance of the statute.
Dworkin distinguishes, as well, between semantic originalism—what the framers of the Constitution and Amendments intended to say—and expectation originalism—what they expected the consequences to be. He then discusses how to understand the Eighth Amendment’s ban on cruel and unusual punishment. As he understands it, the framers “intended to lay down an abstract principle forbidding whatever punishments are in fact cruel and unusual.” Consequently, although the framers thought that capital punishment was constitutional, “the question remains open.” He portrays Scalia’s conception of the Eighth Amendment—a portrayal at which Scalia takes offense—as supposing that the framers intended to say “that punishments generally thought to be cruel at the time they spoke were to be prohibited.”
Scalia responds that Dworkin is merely caricaturing his type of originalism “as a narrow and hidebound methodology” that ascribes to the Constitution a listing of rights in highly particularistic, rule-like terms. In fact, Scalia interprets the Eighth Amendment as containing an abstract principle, but not a principle that “philosophers can play with in the future.” Instead, it is an abstract principle that encapsulates the existing society’s judgment of what is cruel. “It is, in other words, rooted in the moral perceptions of the time.” According to the way Dworkin understands the Eighth Amendment, argues Scalia, “it would be no protection against the moral perceptions of a future, more brutal, generation.” Obviously, Dworkin’s approach to the Eighth Amendment and his similar approach to other abstract portions of the Constitution give judges much more discretion than Scalia’s approach to abstract principles in the Constitution. Cardozo, with his statement about changing constitutional immunities, may be taking the same tack as Dworkin, or he may simply feel that the meaning of the constitutional text changes over time. Either way, Scalia strongly disagrees with Cardozo’s standpoint.
Notably, Kyllo v. United States demonstrates that Scalia does not view the Constitution in the narrow manner envisioned by Dworkin. Suspicious that Danny Kyllo was growing marijuana in his home, federal agents used a thermal imaging device to determine if there was an abnormal amount of heat emanating from the house, which would indicate the presence of high-intensity lamps typically used for marijuana growth. They detected an abnormal amount of heat emanating from certain portions of the house. Based partly upon the thermal imaging, a judge issued a warrant authorizing a search of the home, which resulted in the discovery of marijuana plants. After failing to have the evidenced suppressed, Kyllo entered a conditional guilty plea. The question in the case was whether thermal imaging, which does not penetrate walls or windows and does not observe intimate details of the house, was a “search” in violation of the Fourth Amendment. The Supreme Court, in a decision written by Scalia, found that it was.
According to the caricature of Scalia’s constitutional methodology constructed by Dworkin and others, Scalia should have decided the case differently, since thermal imaging was never imagined at the time of the adoption of the Bill of Rights. But Scalia interpreted the Fourth Amendment as protecting the house from an observational technique that observes what could not have been observed at the time of the enactment of the Bill of Rights without a physical internal search.
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This analysis has revealed that all of Justice Scalia’s restrictions on judicial discretion stem from democracy and the Rule of Law. He does make a strange comment which implies that he approves of narrow judicial discretion for its own sake, but that is an anomaly and, in any event, has no practical effect. Additionally, where Scalia restricts discretion through a certain interpretation of the Constitution, he is merely following what he believes is the original understanding of the Constitution.
Sunday, March 02, 2003
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