I found Dworkin's discussion of statues being read as impelling abstract principles compelling. The issue's I've been having with Scalia during our reading is that his views seem to stand in opposition to some of the most significant Supreme Court opinions in American history such as the decisions passed down by the famous (or infamous depending on your personal view) Warren Court. Dworkin writes, "justices whose methods seem closest to the moral reading of the Constitution have been champions, not enemies of individual rights ... people seem content not only with the moral reading but with its individualist implications" (127.) I would agree, that many of the most important gains in individual rights have been made by judges not following Scalia's methods. The abstract principle reading that Dworkin defends appears to accord better with those historical rulings, "if so, then the application of these abstract principles to particular cases, which takes fresh judgement, must be continually reviewed, not in an attempt to find substitutes for what the Constitution says, but out of respect for what it says" (122.) Rather than posing a threat to freedom, a moral reading of the constitution protects it. What does everyone else think? Would opening up the constitution to a more abstract reading pose too many issues as Scalia contends, or is it actually a path towards a more ideal form of democracy?
Hi Devon!
ReplyDeleteI also definitely agree that when I was reading Scalia's account I was thinking about all of the cases in which Scalia's views have stood against some significant Supreme Court Cases. While this doesn't completely answer your question, Scalia does have a response for Dworkin's case for moral reading in this respect. On page 149, Scalia makes a few points about Dworkin's claims. Scalia first explains that moral reading has "held sway in the courts for only forty years or so," which he argues is "not much history to go on" (149). He further explains "the 'individual rights' favored by the courts tend to be the same 'individual rights' favored by popular majoritarian legislation" (149). Lastly, he explains that "the glorious days of the Warren Court" are behind us along with an "era of public naiveté," thus he claims that "there are hard time ahead" for individual rights that are not preferred by the majority. So I think Scalia would say that while the Warren Court did make progress for individual rights, his court was the exception, not the rule.
Devon, I also think that Scalia’s view on constitutional interpretation would have prohibited a lot of historically landmark cases for social progress and individual rights from occurring, and I too am extremely concerned about this. And Ellen, thank you for summarizing Scalia’s response to Dworkin as it pertains to this issue.
ReplyDeleteI agree that Scalia’s main reason for rejecting the idea of majority rule here is that he is wary of the Court’s ability to uphold individual rights in the future. However, this is precisely where I am most concerned. What rights are the Court supposed to protect? And what majority is Scalia actually referring to? One fundamental democratic right seems to clearly state, by principle, that all should have the ability to participate in their government. However, when cases like Citizens United v. FEC protect private “rights” of nonprofit organizations to spend massive sums on political campaigns, the protection of these rights largely impacts the rights of other groups to have their own speech heard in the political sphere. Yes, the Court “protected” the rights of these corporations from the majority in Congress that had passed legislation against such “speech.” However, protecting these rights largely infringes on basic democratic principles and liberties. Further, what role does wealth play in “majority rule?” Especially in the age of large corporations, it seems to be just as much of a concern that top companies will (and do) rule government as the concern that a majority of individuals will rule at the expense of minorities. Scalia’s account of Constitutional interpretation fails entirely to take relative capital into account, and I find this extremely concerning when talking about relative groups having more political power than others.
Bria, this is a good place to raise the "worth of equality" issue we've been discussing, and so a reference to Citizens United is fitting. However, I would take things a different direction, because I think this same point could raise some bigger issues for Scalia. Would the "trajectory" of the First Amendment, as understood at the time of its passage, truly include money as an outcrop of speech? I'm not so sure, although Scalia at least tries to speak to the issue in his concurrence. In responding to Justice Stevens' dissent, Scalia writes, "It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." I'm very interested to hear what people have to say about the trajectory, and to what extent it's all based on -- again -- a subjectively (that is, different for each person) reasonable understanding of original meaning.
ReplyDeleteAlso, with respect to your question "what rights are the Court supposed to protect?" there are a couple of answers on 42-43. Scalia brings up both property rights and the right to bear arms, and claims that regardless of how important these rights are to us here and now, the founders sought to protect them. This leads to his broader point, which I think is the only way to directly answer you question above: more often than not, he believes our changing understandings are going to lead to "reductions of rights" (43). He posits that constitutional evolutionists are going to cause "less flexibility in government, not more" (42). Given his decision in Citizen's United, I suppose we don't have to speculate. He thought property rights were worth protecting, and that the associated speech (association in the corporate form) was one right he wouldn't see curtailed.
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ReplyDeleteHi Devon,
ReplyDeleteThis may not be entirely what you mean, but in case it is, I'm a little uncomfortable with your logic. Both Scalia and Dworkin develop constitutional interpretation methods founded in logic. They vary in sources they can draw from and how to interpret the sources they agree on -- but they are developing a process. This process may lead where it will, and then as a side note, they both state that their method coincides with the protection individual rights. I don't think either of them would advocate selecting a constitutional interpretative method based on the outcomes it produces. Instead, we try to justify a logically coherent process.
I don't think we should be uncomfortable with Scalia's outcomes if his constitutional interpretative method is coherent. AKA we can't just choose the method that gets the results we want. When you say: "Would opening up the constitution to a more abstract reading pose too many issues as Scalia contends, or is it actually a path towards a more ideal form of democracy?" You seem to be implying that if the consequences were good enough, we could bypass a few smaller threats. I think the focus should be on a just process, not a just outcome. We can use outcomes as a metric to help identify the justness of the process, but we cannot sacrifice logical coherency to get what we feel is right. Then the Constitution just becomes what we want it to be, which neither Dworkin nor Scalia would support.
Interesting idea, Melissa. I'd love to take this up more seriously in class by assessing how we think political motivations have driven both Scalia and Dworkin's logical progressions of interpretive strategies. To give Devon some credit on this one, I believe that both are--to some degree--picking "the method that gets the results we want" (Melissa). You can definitely see this with the examples they both choose to support their method. Maybe an interesting question is who lets their political ideology drive the defense of their interpretive method more? Or do these logical progressions actually create ideologies as we know them today?
ReplyDeleteSorry to chime in late to the conversation, but I think it is interesting to consider the fact that one of the most respected originalist opinions written comes not from the conservative Scalia, but Justice Stevens in his dissent to the Courts decision in DC v. Heller (Struck down a ban on handguns in DC). I think this serves as interesting example of what Melissa brought up. Constitutional interpretation is about developing and implementing a means of interpretation, not about achieving a pre-set end. Quite often Justice will come to the same conclusion for entirely different reasons, thus the existence of concurring opinions or multiple dissents, and that is a very important part of the process. The fact that Stevens and Scalia could both be originalists and come to opposite conclusions shows the importance of the means over the end.
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