I was particularly interested by Scalia’s defense of his
originalism in the context of the debate over “cruel and unusual punishment.”
Dworkin, in his critique of Scalia’s original essay, implies that a “semantic
originalist” must understand the Eighth Amendment to “lay down an abstract
principle forbidding whatever punishments are in fact cruel and unusual” (120).
Scalia responds to this binding concept of proper originalism by noting
that while the Eight Amendment is indeed
abstract, it is not the broad abstraction that Dworkin envisions: “What it
abstracts, however, is not a moral principle of “cruelty” that philosophers can
play with in the future, but rather the existing society’s assessment of what
is cruel” (145). Scalia argues that any
abstraction must be “rooted in the moral perceptions of the time” (145). So it
seems that Scalia is not worried about the notion of a moral principle, but
whose morals the principle is seen to be representing. He would argue that any
principle must be rooted in the generally accepted moral notions that existed
at the time of implementation. While Scalia believes this still leaves him the
flexibility to address torture methods that could not have been conceived of at
the time, “If I did not hold this belief, I would not be able to apply the
Eighth Amendment to all sorts of tortures quite unknown” then, I question
whether that is the case (145). He would argue, I think, that he could apply the
original conception of what was cruel to modern practices and decide if they
would find it cruel, but that to me seems like trying to solve string-theory
physics with an abacus. The world-today is a very different place than it was
in 1787 or 1789, and conceptions about what is considered cruel and unusual
have changed. It was considered perfectly normal then to have people drawn and quartered,
a practice that has long fallen out of fashion. Dworkin’s appeal to the notion
of an original principle of no “cruel and unusual punishment” seems to not only
be a more reasonable understanding of the amendment, but also to align with the
idea of a constitution. Constitutions are designed to lay the framework on which
a government and body of law is built upon, and seeing something like the Eighth Amendment as the embodiment of
an original principle that we must honor going forward, albeit in ways
conducive to the time, stays true to that understanding of a constitution.
First of all, let me be the first to say: string-theory with an abacus -- nice.
ReplyDeleteNow that that's settled, let's get to Scalia's argument. I think there are a couple places which inform his response to the 8th, and one of them is the idea that, "Unlike animal populations...'moral principles,' most of us think, are permanent" (146). It looks like he's trying to smuggle this in, but as you pointed to above: how could he state the moral principles are permanent yet are applicable to completely different, unforeseen scenarios? On his account, the Americans of 1791 were "embedding in the Bill of Rights their moral values," which cannot, on their face, possibly inform contingencies they could not predict (146).
In response, Scalia would probably point to his trajectory argument, where he writes, "In such new fields the Court must follow the trajectory of the [relevant constitutional provision]...to determine what it requires -- and assuredly that enterprise...requires the exercise of judgment" (45). Even after Scalia's response, I think Dworkin's explanation of "expectation originalism" is closer to what Scalia describes from 37-47, and that Dworkin has Scalia on his heels here.
Next, I agree with your above point about Constitutions: Scalia starts the section on constitutional interpretation by quoting Marshall of all people -- and then claiming that, within the bounds of what the language will bear, we should give words and phrases an expansive interpretation. I think that's incredibly odd given what he goes on to say. In any case, I think we can take the Constitutional issue further, and Dworkin has a really important discussion of it. The Constitution indeed sets out broad terms in some places, but is extremely explicit in others. In Dworkin's words, the founders "knew how to be concrete when they intended to be," and the fact that they did not write an explicit dated provision means they didn't intend the 8th to be construed in that way (122). They understood that punishments would change, as would our understanding of what was cruel and unusual; personally, I found Dworkin's understanding of the "majestic abstractions" and their implications for individual liberties to be the best linkage between our discussion of Marshall and Dworkin's theory vis a vis Scalia. I'm just going to quote it all because it's awesome: "The Constitution insists that our judges do their best collectively to construct, reinspect, and revise, generation by generation, the skeleton of freedom and equality of concern that its great clauses, in their majestic abstraction, command" (123).
This passage does point to a place where I think Scalia might score a major point on Dworkin. It is not 100% related to Campbell's post, but if somebody wants to run with it, here's Scalia's most powerful response to Dworkin (in my view): "Why, given what [the evolutionists] believe the bill of Rights is, would they want judges to be its ultimate interpreters?" (147) Another way of putting the question: is the Court really "a most unlikely barometer of evolving national morality," even if Scalia grants evolutionists their Living Constitution?
Wow that comment got a lot longer than I expected. My b.
ReplyDelete^ lol, Mo. And Campbell, I haven't thought about an abacus since second grade; thanks for bringing them to my attention again with that kick ass simile.
ReplyDeleteTo answer your question, Mo: Scalia refers to a notion of timeless morality, since he keeps coming back to "reasonable" construction as the way to interpret the Constitution. Appealing to reasonableness at the crux of his interpretive method surely places a lot of faith in all judges to be morally and reasonably sound in their adjudication. He even says that most people consider moral principles to be permanent (146). Ironically, Scalia supports, while trying to distort, Dworkin's position through this nod to permanency. Moreover, Dworkin has similar trust in judges to apply these permanent principles as conditions for their application change. It seems that if Scalia then goes back on this by calling judges "a most unlikely barometer of evolving national morality," a kind of switchback on his claim that morality isn't evolving in order to warn against judicial lawmaking. Weird.
^ lol, Mo. And Campbell, I haven't thought about an abacus since second grade; thanks for bringing them to my attention again with that kick ass simile.
ReplyDeleteTo answer your question, Mo: Scalia refers to a notion of timeless morality, since he keeps coming back to "reasonable" construction as the way to interpret the Constitution. Appealing to reasonableness at the crux of his interpretive method surely places a lot of faith in all judges to be morally and reasonably sound in their adjudication. He even says that most people consider moral principles to be permanent (146). Ironically, Scalia supports, while trying to distort, Dworkin's position through this nod to permanency. Moreover, Dworkin has similar trust in judges to apply these permanent principles as conditions for their application change. It seems that if Scalia then goes back on this by calling judges "a most unlikely barometer of evolving national morality," a kind of switchback on his claim that morality isn't evolving in order to warn against judicial lawmaking. Weird.