Scalia and Technology

Scalia roots any moral value judgement he makes in the original meaning of the time they were adopted, or "the moral perceptions of the time." This definitely poses problems as Professor Hurley has stated in office hours, since parts of the Constitution were adopted at different times, and if each part has to be read at the specific time it was adopted instead of as a whole, we run into some weird logical problems.

But I'm interested specifically in technology. Scalia seems to believe that we do have to take into account changing technology. So let's see how that works. He says, "Sometimes (though not very often) there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment guarantee of "the freedom of speech" apply to new technologies that did not exist when the guarantee was created -- to sound trucks or to government-license over-the-air television" (45). So the television would constitute a new phenomena that would require special consideration. What does that special consideration look like? "In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires -- and assuredly that enterprise is not entirely cut-and-dried but requires the exercise of judgment" (45). So justices are using their own judgment to try to ascertain the trajectory of right in conjunction with changing technologies? That sounds a lot like Dworkin. Which Scalia concedes in his response -- that he believes in principles. But the difference between his principles and Dworkin's is that they are "time dated." So we time date the moral principles, but we can take into account changing technology.

This logic basically runs into all the problems Scalia is afraid of. And, I would argue he does exactly what he doesn't want judges to do in his opinion in Maryland v. Craig. Scalia, in the previous paragraph, concedes that television would be new technology that we would have to apply a principle to take into account. So lets apply the principle of the confrontation clause to television, which is what Scalia says we are supposed to do. We start by time dating the moral principle of confrontation -- and then we say ask how this fits in with the idea of a television. Does the fact that we can obtain all of the benefits of confrontation without the confrontation, (through the television) satisfy the principle? But this isn't what Scalia asks at all. He simply says "there is no doubt what confrontation meant -- or indeed means today. It means face-to-face, not watching from another room." That's not a time-dated moral principle, thats a dictionary definition from a time when there was no television. Today, confrontation does not require face to face. I confront people over skype, phone, or facebook. So the principle of confrontation evolves with technology. (Not to say that all types of confrontation would satisfy a courtroom, but just that technology can be understood through the principle.) So Scalia doesn't use his own methods in this case, he just falls back on an understanding that existed when there was no technology. So how do we take into account technology? Scalia seems to do so when he wants, and doesn't when he doesn't want to.

And then on top of all this, the other part of his Maryland v. Craig reasoning is based on why the provision exists, or what the purpose of the Confrontation Clause is. That sounds a lot like original intent. "There is no doubt what one of the major purposes of that provision was: to induce precisely that pressure upon the witness which the little girl found it difficult to to endure. It is difficult to accuse someone to his face, particularly when you are lying." Dworkin points out, and Scalia concedes that this should be superfluous to his argument. I have a lot of issues with this case. I get his opinion in Coy v. Iowa (which didn't use technology), but this is too much.

So how does Scalia take into account technology? Sporadically and inconsistently.