Sunday, March 13, 2016

A posthumous defense of Antonin Scalia from critics at The Economist

A few years ago, famed originalist and recently deceased Supreme Court Justice Antonin Scalia gave a lengthy and interesting interview covering a broad range of topics. A few weeks after that interview, The Economist took the opportunity to post an article ridiculing his beliefs titled Originalism's Sin. In honor of his recent passing, I'd like to refute those criticisms. You should read this second article before proceeding, because it’s brief and what follows won’t make much sense without you having read it.

The Economist’s argument against Scalia zeroes in on the following quote from his interview:

Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

Scalia’s critic then does what anti-originalists do best: remove a few words from the context of the larger text, and portray what remains as meaning something the original speaker never intended to say. Assuming the tone of a patient schoolteacher correcting a confused child, Scalia’s critic oh-so-insightfully points out that the meaning of words can, in fact, change over time. I’m sure originalists everywhere were enlightened by this shocking revelation.

But while the definitions of words can certainly evolve, this evolution does not change the underlying meaning of said words at the time they were previously used. Sure, we can tweak the meanings we ascribe to certain patterns of sounds or letters moving forward, but once those patterns are employed in a given context and era, the meaning of the word as it was intended and commonly understood in that particular instantiation remains fixed.

So, to use the author’s example, if we encounter the word “silly” while reading a document written in 1425, the evolution of that word’s meaning since 1425 remains completely irrelevant to our efforts to divine what the document’s author meant to say. To interpret the meaning of that document, the original meaning of the word silly is the one we should go by. To do otherwise would be to transform that portion of the text into a completely different meaning than that which was intended by its author and understood by its audience.

The Economist continues:

“Mr Scalia could use some helpful interpretation here. It would be glib, though not entirely wrong, to point out that this is exactly what he thinks other lawyers shouldn’t do with legal texts. As an originalist, he thinks texts can be strictly interpreted, without trying to get into legislators’ minds. (For example, he does not approve of using the debate around a law’s passage as evidence to what the lawmakers thought the law meant.)”

Prefacing an argument with the assurance that it is “not entirely wrong” says something about its likelihood of being right. In this instance, the author fell short of even that low standard: what he said is, in fact, entirely wrong. Originalism not only permits, but encourages interpreting the constitution by getting into the framers minds, and using the debate around the constitutions passage as evidence of what the framers thought the law meant.

Most originalists believe the constitution should mean whatever it meant when the people originally consented to it (aka, at ratification). Scalia himself endorsed this view in the very passage The Economist quoted, referring to its meaning “when the people voted for it.” The text itself is obviously the best indicator of that, but we have no problem with using the ratification debates as evidence for what they really meant by those words. The Federalist Papers are so often cited by originalists for this very reason.

With that said, citing the debate around the ratification of the constitution is very different from citing the debate around the passage of a law, because it is the real-world implementation of law that determines its constitutionality (courts can’t test the constitutionality of intended government practices that have never actually been executed, because no real person would have standing to file suit). The author ignores this obvious distinction by lumping the constitution in with mere legislation as equivalent “forms of legal text.”

Lastly, the author from The Economist tries to turn Scalia’s originalism around on him using the second amendment:

“Words have meanings only in relation to their speakers and the real world. Meanings can remain constant only if societies remain constant. The “arms” quotation from Heller is telling. While the dictionary definition of “arms” may not have changed much, arms certainly have…The guns Wal-Mart sells today at knock-down prices to masses of customers would be the deadliest personal weapons in the world 1787. This is to say nothing of modern artillery and armour, or chemical, biological and nuclear “arms”.

So even when a dictionary definition (like "arms") is stable, the referents change. The founders could not have explicitly meant to include an AR-15 assault rifle in their definition of "arms" because they could not have imagined one. Figuring out what they might have done differently if they were alive today is at best a speculative exercise.”

The equivalent of this argument is arguing that Congress cannot regulate commerce dealing with computers, or televisions, or LSD, or complex Wall Street derivatives because no such commerce existed in 18th century America. If the right to bear arms is defined so narrowly as to include only those arms which had been invented at the time of the framing, than surely the power of regulating commerce includes only that commerce which was engaged in at the framing, no?

But not even the strictest originalist or most passionate small-government lover, despite our desire to reign in what we see as abuses of the commerce clause, would argue that’s what commerce means. Commerce, by definition, is the exchange of goods and services. Therefore, the power to regulate commerce means the power to regulate that exchange, no matter what new technologies it comes to include.

The same is true of the word “arms.” Scalia is not arguing, in DC v. Heller or elsewhere, that Americans have a right to own nuclear or biological weapons, or tanks or even fully automatic machine guns. He argues, quite rightly in my view, that just as computer-automated derivatives markets constitute the modern version of what the ratifying conventions understood “commerce” to be, a good faith interpretation of the second amendment categorizes handheld, one-shot-per-trigger-pull weapons useful for personal defense and comparable to those used by law enforcement as “arms,” so long as they are small and light enough that one might “bear” them.


If the meaning of the constitution can be changed at will, the constitution means nothing at all.

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