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.

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Why's this on LW?

It's not totally clear to me how narrow or broad the ambit of LW posts should be in terms of how far they can stray from core questions of rationality. This post seems no farther from that core than other posts that appear here, but then maybe some of those shouldn't be here either.

In any case, the thing that I think gives this an LW-type flavor is that it's an example of how you can use a certain kind of argument to bully your opponents. One side in the argument takes a legitimate value that no one can dispute (unlimited power by judges is bad) and then, by what pretty much amounts to a rhetorical trick, sets things up so that anyone who attempts to reasonably trade that value off against other values stands accused of abandoning the value entirely. This leads to a situation where the guy on the other side of the argument comes out sounding unpersuasive, but only because he's got to conduct the argument within the unfavorable constraints set up by the first guy.

Maybe you still don't buy this as being close enough to core LW topics to belong here, or maybe I didn't make the link explicit enough in the post.

One thing I've tried to do when posting is to look at the site's mast and run its mission statement through my mind at the start and at the end of writing: "refining the art of human rationality", and how is my post going to contribute to that precisely? What will my readers do or think after reading that they didn't before?

This is known among article writers as the "so what" test.

Also, you have a higher bar to clear for non-US readers, and I'm one of those (probably atypical in that I'm actually a little interested in US constitutional law). You may not have thought enough about your audience, as this excerpt suggests: "we could get rid of the silly system we have now".

You could call this the Kemo Sabe test, after the cartoon in which the Lone Ranger and Tonto find themselves surrounded by angry Indians, the LR says "We're in trouble, Tonto" - and the latter replies "Who's this 'we' that you speak of, Kemo Sabe?"

To summarize, I've downvoted this for failing two major relevance tests.

There seems to be a norm against heavy edits to top-level posts. I can see some reasons for such a norm, but they seem outweighed by the benefit of improving the posts. Maybe someone can set me straight on that.

Anyway, I'd like to encourage authors to revise top-level posts more, and in that spirit I'll declare here, not just for this post but more generally, my willingness to change downvotes to neutral or even upvotes whenever an author makes the effort, as you did, to discover what readers are not liking, and then makes revisions to their post to address these issues.

Good point on the Americocentrism. I'll keep that in mind.

I appreciate your appreciation of my attempt to make my point better in the above comment. I don't know if it caused Eliezer or any other readers to now agree that it is a point that belongs on LW, but either way I think it improved matters at least somewhat. But I don't think I agree that it would be a good thing if everybody started editing top-level posts, because then the comments made before the revisions would no longer make sense. And I also suspect that a bunch of edits in response to comments would often make the final product worse and not better. I think the way to handle situations like this is in the comments as was the case here, and hopefully those will guide future top-level posts that as a result will have fewer problems to begin with.

There has to be another example of this phenomenon that doesn't come from such a political issue.

I live in Russia, do I get to write a post about Putin now?

In Soviet Less Wrong, government writes about YOU!

Or something.

You can if you like. You do run the risk of getting it downvoted, though.

He's got karma to burn. What else can he possibly spend it on?

I strongly endorse the perspective on karma this comment displays.

I don't. Karma is a proxy for whether the community wants to hear from you. You can predictably go against that - I sometimes do - but there should generally be a strong reason behind it. Karma is a proxy sign for whether you're being helpful, not an accumulated resource that can be burned.

This is exactly the interpretation that I formed of Karma after my brief exchange with... with... I forget who, but it was an Eastern European Gentleman. In it, he said he downvoted a comment due to it being vague and repetitious. So, I did a quick study of those comments that were strongly upvoted and discovered that the vast majority had contributed something to the dialog.

Although, not having a lot of Karma has led me to be rather slow to post anything as a main blog post where the Karma seems to have more weight (if I am interpreting this correctly). I do have something I have been working on, but the "Karma to Burn" does make me hesitant to post something that could send my karma score into the negative.

Just for the record, this was not an instance of intentionally burning karma on a post that I knew people weren't going to like. I'm not saying I would never do that, but I have never done it and have no immediate plans to.

You can encourage or enforce your perspective with:

  • Display karma next to user names everywhere so it's easily visible and can actually serve as a measure of deference.
  • Make downvotes count double, triple, or more.

There's a delicate balance to be struck though: people game the karma system enough as it is. No karma system is ungameable, and greater resistance to gaming means more coding effort.

I think we still got ways to go before we run into diminishing returns.


The more explicit of an attempt to tie it back to rationality the more karma you will get out of it.

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

Not at all. Furthermore, 'We' shouldn't be assumed, by implication, to be Americans.

Hey! What are you doing reading our posts?

2 If there is no absolute rule for judges to stick to, then they end up in some sense making up the "Constitution" themselves.

I'd say Scalia requires more than just any absolute rule. If judges use a different rule besides "preserve the original meaning of the law," they're more likely to change the original meaning of the law.

3 Therefore absolute Originalism is not only correct, but is the only position that distinguishes between "judge" and "dictator."

I think Scalia would ADBOC to that statement. If you've ever read A Matter of Interpretation, Scalia's principles basically boil down to this: lawmakers should make laws, judges should not. He gives several justifications, most of which I've forgotten. The biggest one I can remember is that lawmakers are more accountable than judges.

He gave a good example in that book, from before he was on the supreme court. There was a law making it a crime to use a firearm in a crime. A drug dealer was charged under this law since he tried to trade an unloaded firearm for drugs. Although the panel of judges convicted the man, Scalia dissented. His opinion was that the lawmakers didn't intend for this type of crime to be considered the use of a firearm. If someone asks if you use a cane, you don't say, "Of course I do!" and then point to a framed cane on the wall.

The thing that really annoys me about Scalia is that he doesn't follow his own legal philosophy. His judicial opinions mirror his personal opinions, and that's the biggest problem with his philosophy: There are enough words in the constitution that you can take any opinion you currently hold and rationalize it as the founders' original intent.

ETA: Don't think I'm endorsing Scalia's position. As much as he hates to admit it, judges do change the law, and that is a good thing.

One implication of all this is that there's no good reason for the job of Constitutional arbiter to fall exclusively to judges.

You've just rediscovered The Irrepressible Myth of Marbury and its supporting idea judicial duty (as opposed to power).

I think you gave too short a shrift to the amendment option. If it's too hard to amend the Constitution, that should be loudly proclaimed so we can get to work on fixing it (perhaps by disregarding the amendment rules in creating a new framework, as was done when the Articles of Confederation were replaced). Personally, I'm less enamored of "progress" and think the difficulty of changing it is something of a feature rather than a bug, but one flexible enough that it was not so routinely disregarded would be preferable.

taw: Thomas tends to be the more consistent originalist, so look for decisions where Thomas dissented from Scalia. I can recall hearing a number of complaints about Scalia doing just what you say, but unfortunately cannot name specific cases.

My favorite paper I've read on originalism is 'This Constitution': Constitutional Indexicals as a Basis for Textualist Semi-Originalism. It does have a circularity issue in that you have to care what the Constitution says in the first place. Green's take there is that judges swear to uphold the Constitution, not something else.

Finally, to answer your question of why we should care what they thought, we think they were smart dudes who set up a pretty good system of government and had a better understanding of it than most. But the dominant form of originalism today is not about what they thought, but the meaning of what they wrote, because the latter is law and the former is not.

The Constitution is not a complete system of law (it is, if I remember correctly, the shortest national constitution currently in force) -- so, even if we dismiss the amendment process as airily as you do, the strictest originalism doesn't amount to "live under the exact framework set up by a bunch of very flawed 18th century white dudes forever", because most of that framework was in the form of statutory law. It's not clear to me that the amendment process deserves to dismissed the way you did. You call the Founders "very flawed", which is surely true, but many or most of the ways those flaws were reflected in the Constitution have already been addressed, by amendment. I say that simply to avoid any idea that we need some body such as you suggest simply to make adjustments from time to time.

Nevertheless, a thing may be desirable even if we don't actually need it. So, do we want "a process by which some trusted, relatively non-political body gropes their way to the solutions to problems"?

As it stands, this is a contradiction. Deciding upon solutions to public problems is what politics is. You are proposing to take the politics out of political decisionmaking. If it isn't just nonsense, I can only take this to mean taking the democracy out of political decisionmaking. Therefore what's wanted here is a defense of democracy itself.

Let us suppose that we have some way of knowing that the people chosen really are wise (although I can't imagine what test we could apply) -- we still can't trust them. By the very act of distinguishing them from non-members, we give them distinct interests which may well be contrary to the interests of the people. Their very existence as a body is already contrary to the people's interest in self-government. We are primates, after all, and we derive a significant portion of our subjective happiness from our power and status, which means that having a decision made for you rather than making it yourself is a significant disutility. The decisions would need to be of much higher quality to justify this on utilitarian grounds, but we can't trust a council of wise elders to give us decisions good enough, because, as I said, by virtue of their position they have different interests from us.

If an AI were available I would still object, because even if it seems Friendly we can't trust it that much. It might become aware of the fact that it also has interests.

Part of the reason for having a Constitution in the first place is supposed to be that there are some things that are so fundamental that they ought not be subjected to ordinary democratic decision-making. If you don't buy that premise, then we don't need a Constitution at all (or at least a Bill of Rights). If you do buy that premise, then the question becomes whether and when that set of things that is above the ordinary law ought to change over time. One defensible position is that it ought never to change unless the change can make it through the very difficult amendment process. But the way that position is usually advanced is by incorrectly claiming that the only alternative to it is judicial tyranny and then daring your opponent to come out on the side of the tyrants, and that is not defensible. And that was the main point of the post.

The "Wise Elders" point is merely that if you take a position other than the "no change except for amendments" one and so allow for some additional (though still limited!) changes over time, then the question becomes who should have the power to make those changes. Presumably they should be people who are in some sense above the political fray, because by assumption we are talking about things that should not be left to ordinary politics. And I can see no reason why the people who are given that power ought to be primarily legal experts.


However fundamental they are, they're still subject to some kind of decision-making. There's no way around the difficulty: whoever makes the decision has interests, including an interest in expanding his/their own power. If the decision is too fundamental to be made by the people, then we're saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we're actually trying to promote, which is the general public. If they're that much better than us that this makes sense, it's irrational to leave anything at all to democratic decision-making. Besides, when we give the Supreme Court or the Wise Elders the authority to decide fundamental issues, who gets to decide what a fundamental issue is? Are we going to write it down -- and who interprets this written document?

If the decision is too fundamental to be made by the people, then we're saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we're actually trying to promote, which is the general public.

One of the main ideas behind this type of Constitutional interpretation is that these decisions were already made by the people. That's what the Constitution is, and it's why states and Congress can't pass certain laws, because they conflict with what the people have decided in the Constitution.

Well, yes. That's textualism: the decision was made and it's written down right here.

A Council of Elders who make the decision for us is something else altogether.


I tried to find cases in which Scalia clearly ignored original meaning of the Constitution to serve his ideological agenda, but couldn't find any.

(This comment exists mostly to avoid comment publication bias, negative results are as valid as positive results.)


In neither of them Scalia seems to go against his originalist interpretation of the Constitution.

Wrt marijuana - both sides agreed that Congress had authority to regulate use of marijuana, and from this small scale use arguably followed. Wrt free speech - that's one of many defensible interpretations of what the First Amendment was supposed to mean.

The problem is stupid and ambiguous Constitution - you can "solve" it either by trying hard to apply it literally like Scalia until people fix it; or pretend it says something it doesn't like majority in Roe v. Wade.

Bush vs Gore?


False dichotomy.


I also happened to see this discussion, and found it very interesting, as Supreme Court justices hardly ever debate each other in public. It was particularly fortunate that the debate happened to be between these two, since they are probably the two most intellectually impressive members of the current court.

In answer to the title question, I would like to note that it is often assumed in contemporary American political arguments that the "founding fathers" as a group had a well-defined opinion on whatever question is being argued, but that the knowledge of their view has somehow been corrupted by the sands of time, resulting in contemporary disagreements that could be easily resolved by closer historical study. For instance, some people claim that the founders were religious and thought of the U.S. as a basically Christian nation, while others counter that they were skeptics trying to set up an enlightened secular society. The truth of the matter, in this case as in so many others, is that there was no consensus of "the founders" on either side of the issue: they were having the same argument then that we are having now.

Now to some comments on the footnotes:

**It is worth noting that Originalist arguments are generally used in support the positions of contemporary conservatives

Recent counterexample.

*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.

Why? The Constitution is supposed to be the meta-law; if changing it were as easy as passing an ordinary law, there would scarcely be a point in having a constitution in the first place.

Plenty of smart, sensible people scoff at the judicial philosophy of Scalia, which has its problems. But there is one thing I like about it: it respects the logical hierarchy of rulemaking. There are rules, and then there are rules for making rules. It seems to me that "liberals" (or whatever you call those on the other side) are frustratingly willing to take it for granted that if an apparently good rule violates a meta-rule, there must ipso facto be something wrong with the meta-rule.

Now, of course, almost no one -- at least no judge -- would actually come out and state this explicitly. In practice, what tends to happen is that the meta-laws get "interpreted" broadly enough to embrace whatever law seems like the best policy. But then the meta-laws effectively lose their force altogether.

I should add the disclaimer that I'm not asserting that Scalia himself actually adheres to his stated philosophy in all his decisions; I'm interested here in general principles rather than individual judges.

The fact that people don't often choose to use the possibility of amending the constitution doesn't make the fact that the possibility exist irrelevant.