Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Inside Scalia's Mind

Summer 1997

Antonin Scalia
Princeton University Press, 1997, xiii + 159 pgs.

This is much more than a book: it is a confrontation. It consists of a lecture on constitutional interpretation delivered at Princeton University by Justice Scalia of the Supreme Court; comments on the lecture by Gordon Wood, Lawrence Tribe, Mary Ann Glendon, and Ronald Dworkin; and replies by Scalia to his critics. The exchange between Scalia, on the one hand, and Dworkin, on the other, exposes to view two sharply contrasting ways of looking at the Constitution.

Justice Scalia's principal contention will surprise few conservatives: the Supreme Court has since World War II interpreted the Constitution to promote the social ends its members think desirable. In doing so, the Court pays scant attention to the meaning of the Constitution's text. "The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and 'find' that changing law" (p. 38).

The basic objection to this method of interpretation is straightforward. Why should it be up to the Supreme Court (or the entire judicial branch) to delimit the basic goals of American society? Is this not a task for the people themselves? To think otherwise substitutes judicial dictatorship for democratic decision. Neither is it the case, as proponents of the conventional wisdom claim, that the Supreme Court's forays in creative jurisprudence are needed to preserve civil liberties from the depredations of an unchecked legislature.

The "record of history refutes the proposition that the evolving Constitution will invariably enlarge individual rights. The most obvious refutation is the modern Court's limitations of the constitutional protections afforded to property. The provision prohibiting impairment of the obligation of contracts," writes Scalia "has been gutted" (p. 43).

Scalia's case remains largely intact even if one does not share his enthusiasm for democracy. Suppose one believes that fixed moral rules (to pick an example not at random, the self- ownership principle) rigidly limit the competence of democratic legislatures, Scalia's question has all the more pertinence: why should a small body of judges rule over us as it thinks best?

At this point, I fear, many readers will nod, not in agreement, but in sleep. Haven't we heard this all before? What can those with an "Impeach Earl Warren" sticker in their attics learn from this book?

Actually, quite a lot. Scalia, far from being a conventional modern-Supreme-Court hater, introduces several new twists in his analysis of the Court. For one thing, he ascribes freewheeling Constitutional interpretation to a surprising source the use of common-law methods of reasoning.

Scalia adopts a view of the common law made famous by Oliver Wendell Holmes. The common-law judge, faced with a new case, does not decide according to fixed principles that strictly determine his results. Quite the contrary, he weighs conflicting considerations as his sense of equity dictates. The judge does not apply existing law: he creates new law.

But does not this picture ignore a crucial fact? Judges are bound by precedent; they cannot create new law as they please. Has Scalia even heard of stare decisis?

Of course he knows the role of precedent full well, and he has ready a response to this objection. Judges are experts in "distinguishing cases": they know how to use analogies and disanalogies between cases so that only the precedents they want to apply to the issue at hand will do so.

Scalia does not reject common-law reasoning. To the contrary, he regards its methods as providing some of the main intellectual excitement of the law. But it must be kept in its proper place. When a judge interprets a statute, matters are entirely different. Here, the judge is bound by fixed canons of construction. He must endeavor to interpret the law as written, not apply his own standards of appropriateness.

Precisely the problem of modern Constitutional interpretation, Scalia thinks, is that judges use common-law methods, not those of statutory construction, when they address constitutional issues. As he sees it, a common-law court is a miniature Warren Court.

Scalia's view of the common law will strike readers of Friedrich Hayek and Bruno Leoni as surprising. These writers hold that common law is discovered, not made; to them, the common law is a source of stability. But, in an odd way, whether Scalia is right about common law really does not matter, so far as his criticism of the modern Supreme Court is concerned. Whether he has located correctly the source of the aberrant methods of interpretation, his assault on those methods remains effective.

Another of Scalia's contentions will strike conventional conservatives as even more surprising. Usually, opponents of the Court call for a return to original intent. Not the wishes of the modern Court, but rather the intent of the framers of the Constitution, ought to prevail. Conservative analysts of the law, e.g. Raoul Berger and M.E. Bradford, have devoted considerable attention to the questions: exactly whose intentions are relevant to interpretation? Bradford argues powerfully that it is the intentions of those who ratified the Constitution, not the authors of the document, which have primacy of place. To a Bradfordian, the debates at the state conventions that adopted the Constitution are of key importance.

Scalia finds this approach entirely without merit. "The evidence suggests that [in statutory interpretation] we do not really look for subjective legislative intent. We look for a sort of 'objectified' intent the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.... It is the law that governs, not the intent of the lawgiver" (p. 17).

Readers might again be tempted to doze off. Just what most proponents of original intent mean is that judges should interpret the law as written. Whether one calls this "intent" is a semantic issue of relevance to legal philosophers, but no one else. Who cares?

This reaction ought to be resisted; Scalia's view has drastic practical implications. Scalia refuses to consider the views of the Constitution's framers, except to the extent they indicate common usage. "I will consult the writings of some men who happened to be delegates to the Constitutional Convention Hamilton's and Madison's writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood" (p. 38).

Scalia seems to me to go overboard here. If by "intent" he means what the legislator hoped to accomplish by enacting a law, he is entirely correct that intent does not govern law. If the authors of the Second Amendment guaranteed the right to keep and bear arms in order to promote state militias, it does not follow that people have that right only as far as the need of the militia require. What the amendment enacts is the right in question, not its purpose. But because text and intent are different concepts, it does not follow that they should be viewed in nearly complete independence. Often intent provides indispensable guidance to understanding the text. Those who think otherwise might peruse with profit Raoul Berger on the Fourteenth Amendment.

Ronald Dworkin, a leftist legal philosopher of formidable intellect and even more formidable ego, agrees with Scalia that judges should interpret the Constitution as written. But his agreement does not imply that he has switched sides and become a judicial conservative. Far from it.

Just what the Constitution enacts in many of its provisions, according to Dworkin, are broad abstract principles to be filled in by later generations. His response to those who charge leftists with judicial usurpation is, in effect "what you call usurpations really are not. True, judges interpret the Constitution according to moral principles they hold correct. But this is what the Framers intended them to do." Dworkin thus contends, in Orwellian fashion, that judicial "creativity" is really a variety of originalism. However much it goes against the grain, one must concede that Dworkin's position is not self- contradictory. It is only false.

Lawrence Tribe, like Dworkin, is a leading judicial liberal, but at least he avows more honestly what he is about. Refusing to hide behind the mask of "true originalism," he maintains that the court should treat key parts of the Constitution as "aspirational." They state goals that judges of later eras must spell out explicitly.

Tribe opposes original intent with two arguments, both without merit. First, the Constitution does not explicitly state that it is to be interpreted according to the original meaning of the text; and if it did, an infinite regress would result. Further, the appeal to original meaning fails because of "transtemporality." What the Framers meant may differ greatly from what those who proposed later amendments had in mind. Whose intentions are to prevail?

Tribe thinks himself a legal philosopher; and the first argument is just the sort of pseudo-profundity in which he specializes. To resort to original intent is simple common sense: it does not need to be explicitly stated in the document. And if it were, an infinite regress would ensue only if one persisted in applying irrational ways of reading. "Transtemporality" may pose a problem, or it may not; you have to look at particular cases. Tribe's "argument" establishes no general difficulty for original intent.

So much for our two great liberal legal thinkers, and Scalia disposes of them without difficulty in his response. Mary Ann Glendon maintains that European constitutional courts use more reasonable methods of interpretation than our own Supreme Court, a view Scalia does not dispute. Gordon Wood finds activist judges more entrenched in our history than Scalia imagines. But his historical points largely leave current disputes untouched.

The real battle in this book, then, takes place between Scalia, on the one hand, and Dworkin and Tribe on the other. Though Scalia draws what to my mind is an overly sharp distinction between textual meaning and original intent, he remains always on the right side of reason. I cannot say as much for his opponents.


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