While explaining his use of outside sources to understand the Constitution, Scalia states that he will reference not only the Framers, but also other prominent writers. He does this because he believes that the Framers cannot be given authority for their intent which could be deduced from these works. Instead, he uses numerous sources because "their writings... display how the text of the Constitution was originally understood" (Scalia 38). He explains that for this reason, he will even consider Jay's pieces in The Federalist and Jefferson's works even though neither of these writers were Framers.
Dworkin raises an initial objection to Scalia's argument, asserting that to consult this wide range of texts, Scalia must believe that all these writers held a shared understanding of the Constitution. Such an assumption of shared understanding, Dworkin states, is unreasonable. He asserts that it is evident that even during the creation of the Constitution such agreement never existed. When discussing the First Amendment, Dworkin specifically comments that "no one supposed that the First Amendment codified some current and settled understanding, and the deep division among them showed that there was no settled understanding to codify" (Dworkin 125).
In response, Scalia affirms he believes that there were unified positions on the "main points," but allows that "even if not, it is infinitely more reasonable to interpret a document as leaving some of the uncertainties of the current state of the law to be worked out in practice and in litigation than to interpret it as enacting and making judicially enforceable, and indeterminate moral concept" (Scalia 148).
I think that Dworkin could take his objection to Scalia's "unified" Constitutional understanding argument even further. In our reading last week, Scalia criticized those who rely upon legislative intent because "in any major piece of legislation, the legislative history is extensive, and there is something for everybody" (36). Scalia faults these people who arbitrarily pick and choose which sources best support their argument, since there is enough variety in the text to support any position. To me, Scalia is engaging in this same "picking and choosing" problem. Acknowledging that he will often reference more obscure writers, Scalia is allowed to choose the sources which best illuminate what he believes the original meaning should be. This highlights a larger problem in Scalia's argument: Does his construction of what constitutes original meaning truly avoid the problems he finds in those who assert what constitutes original intent? Both seem to rely on individual, subjective constructions of historical texts.
Nisha,
ReplyDeleteI think Scalia would respond by saying that his broader notion of original meaning over original intent, something that is aligned with the small group of framers, is more inline with textualism that unexpressed intent. I believe Scalia would feel that by trying to gain an understanding of the original meaning of the constitution as it was widely understood, through the use of many sources like other writers or dictionaries, he is honoring the text that was passed. In the same way examining the intent of a specific lawmaker does respect the fact that the law is the law not the person, basing ones constitutional interpretations of the intent of the founders places their views above the constitutional text that was ratified by "we the people."