How Much Should We Care What the Founding Fathers Thought About Anything?

by David_J_Balan 3 min read11th Feb 201036 comments


A while back I saw an interesting discussion between U.S. Supreme Court Justices Stephen Breyer and Antonin Scalia. Scalia is well known for arguing that the way to deal with Constitutional questions is to use the plain meaning of the words in the Constitutional text as they would have been understood at the time and place they were written.* Any other approach, he argues, would amount to nothing more than an unelected judge taking his or her personal political and moral views and making them into the highest law of the land. In his view if a judge is not taking the answer out of the text, then that judge must be putting the answer into the text, and no judge should be allowed to do that.** One illustrative example that comes up in the exchange is the question of whether and when it's OK to cite foreign law in cases involving whether a particular punishment is "Cruel and Unusual" and hence unconstitutional. In Scalia's view, the right way to approach the question would be to try as best one could to figure out what was meant by the words "cruel" and "unusual" in 18th century England, and what contemporary foreign courts have to say cannot possibly inform that question. He also opposes (though somewhat less vigorously) the idea that decisions ought to take into account changes over time in what is considered cruel and unusual in America: he thinks that if people have updated their opinions about such matters, they are free to get their political representatives to pass new laws or to amend the Constitution***, but short of that it is simply not the judge's job to take that sort of thing into account.

I don't think it's an unfair caricature to describe Scalia's position as follows:

  1. It would be a bad thing for a bunch of unaccountable, unelected judges to have their own opinions be made the supreme law of the land.
  2. If there is no absolute rule for judges to stick to, then they end up in some sense making up the "Constitution" themselves.
  3. Therefore absolute Originalism is not only correct, but is the only position that distinguishes between "judge" and "dictator."

Claim #1 is true and Claim #2 is sort of true, but Claim #3 is clearly not true. What we're really faced with here is nothing more than a garden variety trade-off between two important values: trying to avoid disruptive or arbitrary rule by judges on the one hand and progress on the other. There simply is no absolute value at stake to which all other values must be subordinated. Does anyone really think that there is no real estate between "live under the exact framework set up by a bunch of very flawed 18th century white dudes forever" and "have tyrannical judges just make up whatever the heck they feel like and call it the Constitution?" It's worthwhile to argue about where on this spectrum to come down, but the idea that this problem can be made to go away as long as you have a good 18th century English dictionary is pretty delusional.

This necessarily means that what judges do is not merely to "interpret" the Constitution. In this sense Scalia is right. The opponents of his position aren't really offering an alternative way to interpret the Constitution, and it's disingenuous of Breyer when he insists that that's what he's doing. That's why Breyer seems so unimpressive in that exchange. He can't come out and say that what he's really doing is casting about for guidance about how to deal with a hard question while not departing too much from what's written in the Constitution and in precedent, and that looking to see what some foreigners did makes sense as a (small) part of that effort. He has to pretend that he merely has a different method of interpretation, and Scalia rightly calls him on it. What I think Breyer is really saying, but can't come right out and say, is that what he's really doing is deciding how much to listen to the Constitution and how much to change it. This is not the same thing as saying "take whatever the heck Stephen Breyer feels like saying and call it the Constitution," but he can't make that (correct) argument without conceding that he's not really exclusively an interpreter of a text. Though the parallel is not perfect. the exchange has something of a "Doubting Thomas vs. Pious Pete" vibe.

One implication of all this is that there's no good reason for the job of Constitutional arbiter to fall exclusively to judges. If what's really going on is not just the interpretation of the legal texts, but also a process by which some trusted, relatively non-political body gropes their way to the solutions to problems, then it may make sense to have a set of appointed "Wise Elders," only some of whom are judges, chosen to perform this function in broad daylight. Then we could get rid of the silly system we have now where everyone sort of pretends that the qualifications for a Supreme Court Justice are primarily technical legal expertise****, and in which it becomes a scandal whenever someone digs up a comment that a nominee once made that suggests that their personal views about something or other might affect how they rule on the Court.

*One could argue about whether this is possible, as there may have been some intentional "constructive ambiguity" in choosing those particular words in the first place.
**It is worth noting that Originalist arguments are generally used in support the positions of contemporary conservatives, so it's not always clear when such arguments are being made in good faith and when they're a fig leaf.
***The Constitution can be amended, but the conditions for doing so (which are of course set up by the Constitution) ensure that it hardly ever is, so this is mostly irrelevant.
****U.S. Supreme Court judges serve both as the highest regular court in the country and as the Constitutional arbiter. Technical legal expertise is of course central to the first function.


Update @11:03 AM: Some commenters have said that they don't think this is an appropriate topic for LW, so I've tried in the comments to explain better what I think the LW-relevant point is. A bunch of commenters objected to the Americocentric tone of the post, such as using the term "we" as if everyone on LW was an American. I will try to be careful to avoid doing that from now on.