James Ryan has a very interesting review of two books that critique originalism as a compelling theory of constitutional interpretation available at SSRN (it will be published in the Stanford Law Review soon). One of the books he reviews, Active Liberty, is written by none other than Supreme Court Justice Steven Breyer and it is aimed primarily at Justice Scalia's brand of originalism. Breyer and Scalia have appeared at forums together essentially debating this subject over the last few years, which I would pay good money to see as I think they are the two finest minds on the court. This book, no doubt, is intended to be a response to Scalia's 1997 book A Matter of Interpretation.
The other book being reviewed is Radicals in Robes: Why Extreme Right Wing Courts are Wrong for America by liberal law professor Cass Sunstein. Of the two, Ryan appears to prefer Breyer's book and he says that while offering up good arguments against originalism and compelling examples of where those who claim to be originalists have left their originalism behind in order to reach a desired result, neither of them offers up a coherent alternative to originalism as the correct theory of interpretation. But I suspect that, in fact, neither of them would consider that a weakness; indeed, I suspect both would argue that there is no single true method of interpretation.
I'm going to quote a fairly long excerpt from Ryan's review below the fold, dealing primarily with Scalia's inconsistencies in regard to originalism and then draw some parallels between conservative judicial positions and conservative religious positions.
There are some obvious difficulties with Scalia's originalism as a theory, which both Professor Sunstein and Justice Breyer address. Before turning to those difficulties, however, it is worth considering a question that only Professor Sunstein raises: to what extent do so-called "originalists" or "fundamentalists" actually follow their avowed
methodology? The question may at first seem like a cheap shot - a game of "gotcha" designed to expose inconsistencies that undoubtedly plague all jurists, not just self-proclaimed originalists. Putting aside the fact that some originalists like Scalia invite this line of inquiry by their unrelenting attack on nonoriginalists as unprincipled, the question is actually an important one. It not only sheds light on the sincerity of some originalists, but also on the degree to which we can trust their use of history. If it turns out, for example, that Justice Scalia only relies on originalism when it plausibly supports a politically conservative outcome, we have reason to be skeptical when he does rely on history, because he has already demonstrated a disposition to be results oriented. Looking more broadly, it might make us skeptical about the entire enterprise of originalism as currently practiced if it turns out that its advocates rely on history only when it plausibly supports politically conservative results...This still leaves plenty of material for Sunstein. Indeed, in Sunstein's view, Scalia and Thomas are emblematic of fundamentalists who harbor not a principled but a political agenda. The claim is an exaggerated one, both generally and with regard to Scalia and Thomas, but it is not necessarily false. To begin, fundamentalists do not self-identify as such. Some advocates may push a radically conservative agenda under the banner of originalism, regardless of the match between that agenda and the original meaning of the constitution. But it does not follow, of course, that all who subscribe to originalism are equally radical or politically motivated. Similarly, with regard to Justices Scalia and Thomas, they certainly veer occasionally from originalism, and there does seem to be a coincidence between their abandonment of original meaning and their arrival at a politically conservative result. But the issue is more complicated, because both Scalia and Thomas have endorsed politically liberal results that seem dictated by originalism, and because at least Scalia has indicated that he will sometimes follow precedent rather than original meaning.
That said, Sunstein is surely right to encourage his readers to raise an eyebrow or two at the contemporary correspondence between so-called originalists and those who are politically conservative. As he observes, it would be odd if the original meaning of the Constitution -- which, after all, is not easily ascertained with regard to a host of important issues -- happened to line up perfectly with the major planks of the Republican Party platform. So why is it that so many conservative Republicans support originalism and so few liberal Democrats do? Doesn't this correspondence itself suggest that originalism, as currently practiced by conservative lawyers within and outside the Supreme Court, may often be just a smoke screen to justify politically conservative results that its advocates favor? Doesn't the fact that Scalia, Thomas, and others are willing to abandon originalism when it does not support a politically conservative outcome bolster that suggestion? These are the questions Sunstein wants his readers to ask themselves, and he is right to provoke this inquiry. There does indeed seem to be something fishy going on here, and Sunstein, though certainly not the first, is right to say so.
I would suggest that one possible reason why advocacy of originalism tends to line up with conservative thinking is due to the comparison that Sunstein makes between "originalists" and "fundamentalists". Constitutional originalism is similar to Biblical fundementalism in that both refer to essentially sacred text whose meaning is fixed in time and does not evolve as man's knowledge and moral views evolve. In both cases, the text is to be taken in its most literal sense whenever possible and in neither case will the notion that any portion of it no longer serves our needs be tolerated. Psychologically, the reaction to the idea that the world might be more complicated than they consider it to be is quite similar.
The analogy is quite clear between this conservative view of constitutional interpretation and conservative theological views of Biblical interpretation. And in both cases, those views are opposed by more liberal views of interpretation that make many analogous arguments. For instance, just as liberal theologians argue that holding to a literal view of scripture often locks one in to centuries old views that have long been discredited, liberal legal scholars argue that holding to a literal view of the text of the constitution locks us in to the views of a society that still denied women the right to vote and still accepted slavery as normal.
Conservative theologians argue that a non-literalist approach to Biblical exegesis that applies only the broad principles and not the letter of the law opens us up to subjectively picking and choosing which parts we like and which we don't; conservative legal scholars make much the same argument about constitutional interpretation, that without a firm foundation in the text itself judicial rulings become little more than exercises in judicial lawmaking premised upon their own feelings about what the law ought to say rather than what it actually says.
Likewise, liberal theologians argue that unless one tempers the often-barbaric nature of the Bible's decrees with an application of the broader principles, like the Golden Rule, we are again stuck trying to make the world like the far harsher and less civilized world that the Biblical writers inhabited. And liberal legal scholars respond by pointing out that such literalism results in unacceptably disturbing results that would be cruel and would return us to a less civilized time.
And as this review points out, both liberal theologians and liberal legal scholars make the argument that their conservative counterparts are not nearly as objective as they pretend to be in applying their sacred texts. In both cases, those who argue for a more literal reading still engage in picking and choosing for themselves which parts to take literally and which not to, and they do so on the same subjective grounds that they accuse their opponents of. As my friend Dan likes to say, everyone is a legal realist, some just refuse to admit it.
Likewise, I think liberal scholars of both the Bible and the Constitution would argue that the conservative literalist view is overly simplistic, that reaching conclusions about these very complex issues of making moral judgements about our relationship to others or equally moral judgements about the limits of what a majority may force a minority to do or not do is far too complicated to be solved merely by the rote application of a short list of rules. The proper solutions to such problems, they argue, is far more likely to come out of an ongoing dialogue than by the simple reference to a set of rules laid down when the dominant views on such matters were formed in ignorance and superstition.
The solution to all of this, in my view, is to look to the original principles of liberty and equality before the law and apply them logically and uniformly in all circumstances rather than looking to the original practices of the founders. The principles they left us are timeless and unassailable, while their compromises and betrayals of those principles have found their way into the dustbin of history for a reason. It is liberal originalism that escapes the traps on both sides, remaining moored to the founding principles without being tied in a hidebound fashion to their own refusal to apply them fairly and equitably.
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Doesn't this correspondence itself suggest that originalism, as currently practiced by conservative lawyers within and outside the Supreme Court, may often be just a smoke screen to justify politically conservative results that its advocates favor?
Aside from the fact that I think you misrepresent originalism - within that school, there's rather a lot of scholarship as to what the intentions of the writers of the various parts of the Constitution were - I find this a rather pat connection. One might just as easily argue the reverse - that the "living Constitution" and similar "non-literal" interpretations often resemble a smokescreen for politically liberal results.
But it strikes me as more important to recognize a serious difference between the text of the Bible and the text of the Constitution - and the attitudes their respective "true believers". Biblical literalists treat the Bible as the unalterable word of God. Constitutional literalists treat the Constitution as the entirely amendable agreement defining and restricting the federal government.
This difference, of course, is one major place where this analogy breaks down. Christians can't revise, say, the homophobic passages in the Bible. They can only choose to regard them differently. On the other hand, Americans can revise the objectionable parts of the Constitution - and have, repeatedly.
(Also, if you're really looking for originalism on the court, Justice Thomas actually hews closer to such a line than Scalia, as shown by recent cases like Kelo v. New London.)
Eric wrote:
First, please note that the segment you quoted was from Ryan's piece, not my own words. Second, I would agree with the reverse argument regarding legal realism on the left, for the most part. But please understand that I'm not arguing that originalism is always merely an ad hoc justification for conservative political views. As Ryan points out, there are enough instances where Scalia or Thomas reach decisions not in line with their political views to make that argument an overreach (Scalia's opinion in Texas v Johnson would be an example). Nor am I arguing that originalism in all its forms is an illegitimate theory of interpretation. Though I personally advocate liberal originalism as the best theory of interpretation for the constitution, I also recognize that there are other valid modalities of interpretation useful in particular circumstances.
I'm not suggesting that this is a perfect analogy, nor was it intended to be one. My argument is that the similar aspects, and I listed them specifically, may well account for the tendency of conservatives to prefer originalism. My point was not that they are analogous in every way, but that the arguments take on a familiar form both for advocates and opponents on both issues. That dynamic surely must be a part (though surely not the whole) of any explanation for why originalism and conservatism go together. I'm quite certain that there are other factors as well, of course.
I agree with that, Thomas is more consistent than Scalia in this regard. Still, there are areas where I think Thomas is inconsistent as well and Ryan goes into some of them in his review, as do both Sunstein and Breyer in their books apparently. But on the whole, Thomas is certainly more consistent than Scalia, which is ironic given that Scalia is the one who is prone to such grandiose pronouncements that only originalism offers true consistency and that only his opponents are motivated by their political beliefs.
First, please note that the segment you quoted was from Ryan's piece, not my own words.
Sorry about that!
Second, I would agree with the reverse argument regarding legal realism on the left, for the most part.
This is another area where the analogy fails. In the case of, say, creationism versus evolution, we can argue scientific issues and generally use empirical knowledge to evaluate what's realistic. However, when we argue different schools of constitutional interpretation, we're on the field of ideology and law. There is no body of empirical data to compare against. Using "realism" to describe a preferred approach is only rhetoric designed to give an unreasonable authority to one's preference.
My argument is that the similar aspects, and I listed them specifically, may well account for the tendency of conservatives to prefer originalism. My point was not that they are analogous in every way, but that the arguments take on a familiar form both for advocates and opponents on both issues
I'd definitely agree that there's a resemblance in the rhetoric on both sides of both issues. In this case, on the liberal side there's an attempt to dismiss a rather large (if inconvenient) body of legal thought as "simplistic" (or "unrealistic"). Such dismissals are a rather common rhetorical trope among liberals that predates the current pro-science tilt of the Democrats and the religious mania of the Republicans. They may well be an indicator of some of the reasons why Democrats have become more friendly towards science than Republicans.
Another way to think about it is that many conservatives try to use allusions to religion to give their political ideas a sense of authority, while many liberals try to use allusions to science for the same purpose. Both are simply rhetoric if science or religion aren't actually involved, of course.
(When I still followed Skeptic and Skeptical Inquirer, I was always amused when someone would write an article trying to come up with an answer to a political issue that was "scientific" or "skeptical" and not at all beholden to ideology. Somehow, the suggested policy was always remarkably consistent with a moderate-liberal outlook and entirely acceptable to the moderately liberal writer.)
There is yet another aspect to this "analogy" betwixt the Constitution and the Bible that needs a bit of review. Eric writes for example: Christians can't revise, say, the homophobic passages in the Bible." This really isn't true, as the near 1800 year history of Christian religion evidences. The early church put much more "power" into the authority of the Holy Father than in the texts, partially because the early church was very much involved in the selection of, and specific "translation" of the canon. Much of the demand for a literal interpretation has come in the last 150 years or so, at the end of a tumultuous 400 year period during which the two "original" church lines--orthodox and catholic (yes and all the various subsect monastic groups in the Middle East) broke into numerous sects and creeds of faith. Archaeology is, even up to this very day, unearthing discoveries concerning the textual referents from which various faith's translations of their literally taken screeds come.
And herein i think is a possible influence. As Ed has so often demonstrated, the issue is about the philosophical underpinnings of the Constitution and how various US governments and SCOTUS justices have interpreted them. If we begin to examine other "constitutions" that were drafted and written and ratified subsequent to the US's, we discover that these texts share many, if not most, (and some would argue more) of the enlightened philosophical principles of liberty and human dignity/respect. I don't think many people bother to read their own state's constitution which are, in many cases, extraordinarily powerful documents, in and of themselves. Likewise some of the early efforts in South America were visionary in that respect as well.
Eric the .5b (whose nickname I just "got" and found quite amusing) wrote:
I was simply using the standard names, not implying anything further. Like it or not, non-originalist forms of constitutional interpretation are typically referred to as forms of "legal realism", as opposed to the various types of formalism. I agree with you that there are distinctions between ideology and law, on the one hand, and empirical science on the other, but I'm not sure how that relates to the limited analogy I was making. Biblical interpretation is no more scientific and objective than legal interpretation, indeed probably less so. At no time did I compare legal analysis with scientific analysis.
Indeed, I should point out that the crux of my argument is that those on both sides, whether liberal or conservative, legal realist or formalist, do pick and choose among the available interpretive modalities based at least partly, perhaps mostly, upon their preferred outcome in a case. I don't think everyone does this all the time, or that one side does it more than the other, but I think this is the norm rather than the exception. The only reason I am picking on conservative originalists here like Scalia is that he is the one who is most prone to giving speeches declaring his opponents to be entirely subjective and result-oriented while declaring himself to be objective and immune to such thinking. I think that's nonsense and I think the inconsistencies in the application of his preferred modes of interpretation bear that out.
Without any specifics, this is a difficult argument to assess. I certainly don't doubt that when science and politics become mixed, far more subjectivity enters into one's analysis than if the scientific issue at hand did not involve political judgements, nor do I doubt that this is about equally true on both sides. There is no doubt that political considerations often drive one's position on a scientific issue, from stem cell research to sex education to many other subjects.
Eric the .5b
Eric the half-bee...
Eric the point five bee...
Nahh...I don't get it.
Eric the Half-a-Bee, it's a Monty Python reference.
Ahhhhh...I see. I know a bit of the Circus (very funny stuff), but not familiar with that character.
Eric writes for example: Christians can't revise, say, the homophobic passages in the Bible." This really isn't true, as the near 1800 year history of Christian religion evidences.
Well, there's revision and there's revision. Something on the order of the Council of Nicea just isn't going to happen again any time soon, and Christians would have excellent grounds to denounce such an effort as simply creating a new religion, not revising the old. Nor is there any framework in place for amending the Bible. Deuteronomy, as an example, isn't going anywhere.
Eric the .5b (whose nickname I just "got" and found quite amusing)
Thank you!
I was simply using the standard names, not implying anything further. Like it or not, non-originalist forms of constitutional interpretation are typically referred to as forms of "legal realism", as opposed to the various types of formalism.
I misunderstood your reference, sorry about that. But isn't legal realism a more general mode of thought, the dismissal of the letter of any law in favor of achieving desired goals, rather than simply not being originalist with regard to the Constitution?
I agree with you that there are distinctions between ideology and law, on the one hand, and empirical science on the other, but I'm not sure how that relates to the limited analogy I was making.
That was a product of my misunderstanding; please disregard that.
Indeed, I should point out that the crux of my argument is that those on both sides, whether liberal or conservative, legal realist or formalist, do pick and choose among the available interpretive modalities based at least partly, perhaps mostly, upon their preferred outcome in a case.
I can see that quite clearly from your comments, but your original post seems rather focused on equating constitutional originalism with biblical literalism and dismissing both as simplistic. I admit, being an agnostic/skeptic with sympathies towards originalism, that claim rather stands out, but I honestly don't see how you were discussing bipartisan hypocrisy.
The only reason I am picking on conservative originalists here like Scalia is that he is the one who is most prone to giving speeches declaring his opponents to be entirely subjective and result-oriented while declaring himself to be objective and immune to such thinking.
On that, I'll agree with you.
Without any specifics, this is a difficult argument to assess.
I never kept any notes; it just always struck me that such exercises in deriving a "scientific" policy never produced results that struck the writer as counter-intuitive on a political or ideological level. Unless one assumes that one's own political views happen to perfectly match the facts of the world, one should expect some surprises. But I think our conclusions are basically the same on this count.
And for Dave, the lyrics to "Eric the Half-a-Bee"
I have to wonder whether it is fair to describe either liberal theologians or liberal jurists as consciously engaging in disregarding a portion of text that "no longer serves our needs" because it "locks one in to centuries old views that have long been discredited" or entails "unacceptably disturbing results that would be cruel and would return us to a less civilized time." That is certainly the characterization employed by some conservatives.
However, I would venture to say that most liberal theologians and liberal jurists do not accept the proposition that the text came with a mandate to interpret it in the particular formalist manner favored by the think tanks of today. On the contrary, they might say, the "plain meaning of the words" throughout the Constitution requires us to apply them to new and concrete circumstances. For example, rather than describing a particular method of punishment, the framers used the words "cruel and unusual" -- words that you can look up in a dictionary (of any vintage) and still not find a list of the complete set of such punishments.
Some originalists prefer to inscribe here exactly such a list, kind of like a time capsule to be "discovered" by historical re-enactors. But "cruel and unusual punishment" is a description, and the job of applying the 8th Amendment is to take the case before you and judge whether the description fits. Perhaps this activity matches with your pursuit of the "principles" written in the Constitution.
Eric the .5b wrote:
I think you're reading too much into what I said. I did not equate the two, I drew an analogy between the structure of the arguments on both sides of those disputes as (and this is important) a partial explanation for why originalism seems to be a predominately conservative phenomenon in judicial circles. If you read the last paragraph of the quoted text before I begin to speculate on that connection, you should see what I was trying to explain. Now, that certainly does not mean that this is the only explanation for it. I can think of several other factors myself that probably contribute to this congruence. But the parallels between conservative judicial philosophy and conservative theology are striking, in my view, as are the parallels between liberal judicial philosophy and liberal theology (with full recognition that those terms aren't perfect descriptions of the real world, of course).
As far as the question of "bipartisan hypocrisy" is concerned, this has nothing to do with partisanship; I'm discussing judicial philosophies, not political parties. And as I pointed out above, the reason why I focused on the contradictions in conservative originalism is because it is that group who claims - falsely, in my view - that their formalistic interpretive scheme reaches objective results without regard for the results of the case, as opposed to those "liberal judges" who are "results oriented" and "interpret the case in light of their political preferences." This is very common rhetoric from Scalia and his fellow (alleged) originalists.
My position is that this is largely a sham, though not completely; there are times when I think Scalia and Thomas have set aside their political preferences for the sake of consistency with their originalist views (and I cited Scalia's opinion in Texas v Johnson as an example). But the fact that they have also repeatedly (Scalia more than Thomas, I agree) ignored originalism to reach a result in line with their political views (Scalia's opinion Raich being an obvious instance) strongly suggests that originalism is still largely a matter of convenience for them. I would certainly agree that the same is true for the legal realists on the left, but the difference is that they don't claim to have an overriding theory of interpretation that should trump all result oriented thinking.
Ezra wrote:
And this is indeed an argument made against originalism, and I think it is a powerful one.
I think you're reading too much into what I said. I did not equate the two,
Mm, that's a bad choice of words on my part, sorry.
As far as the question of "bipartisan hypocrisy" is concerned, this has nothing to do with partisanship; I'm discussing judicial philosophies, not political parties. And as I pointed out above, the reason why I focused on the contradictions in conservative originalism is because it is that group who claims - falsely, in my view - that their formalistic interpretive scheme reaches objective results without regard for the results of the case, as opposed to those "liberal judges" who are "results oriented" and "interpret the case in light of their political preferences." This is very common rhetoric from Scalia and his fellow (alleged) originalists.
This is the part I'm having trouble with. Is the point that conservative jurists predominantly adhere to particular philosophy that strikes you as having parallels to biblical literalism or that they don't adhere to philosophy and that "originalism" is mostly just a cloak by some for partisan decisions? I don't think you can reasonably assert both at the same time.
And this is indeed an argument made against originalism, and I think it is a powerful one.
It's also an argument I've heard against judges interpreting the Constitution to mean what s/he wants it to mean.
Eric the .5b wrote:
I actually do think it's both, and let me explain why. What I'm really trying to explain is not so much why Scalia holds to originalism (partly because I don't believe he really does), but why his explanation and defense of originalism is so appealing for conservatives. And my answer to that, in part, is that it appeals to them because it has a similar structure to the arguments for conservative theological views that many of them have already accepted (and also because it is opposed by similar arguments from liberals in both judicial philosophy and theology). The average person who holds conservative political views really doesn't understand judicial philosophy at all, any more than the average person in the pews really understands theology very well. They accept those views largely because they lead to results they like, or at least they think they do, and because they perceive them as being settled and anchored in the solidness of a sacred text. I think that's the psychological appeal of originalist arguments for the rank and file. Does that help explain the position a little better?
I'm way out of my league here, but it's an opportunity to float a view I have of J. scalia specifically. if it's utter foolishness, I apologize.
in the dissents I've read (all on social, not legal technical issues) aside from their being well researched and logically consistent, a common feature is an emphasis on deferrence to "democracy", or more accurately to majoritarianism. if it isn't explicit in the constitution, let the people decide. one might argue that the originalism is a fortiori rather than a priori since during much of J. scalia's adult life, a "conservative" view more-or-less by definition will be popular, even more so in the case of religious views. if you want your conservative and pro-religion views reflected in the society, you should go for the maximum "democracy".
the glimmers of hypocrisy I see (based on an admittedly inadequately small sample) is inconsistent weighting of democracy. examples: Lawrence - one would predict that he would be anti-gay (an expectation confirmed, IMO, by his rebuttal of J. o'conner's EP argument) and he goes with democracy; Aguillard - one would expect him to be generous to religion in the classroom and he goes with democracy; Gonzales v. oregon - one would expect him to be opposed to assisted suicide, and sure enough democracy takes it in the ear; Raich - ditto. this obviously may be coincidence, but it is at least suggestive.
I am quite aware that one has to read the opinions, not just tally the results, and I have. and his arguments are in fact convincing - until you catch the key a priori assumption that is bedrock for the result. eg, Lawrence - homosexuality is chosen, and consequently homosexual sodomy is like any other optional "criminal" behavior. Aguillard - creation science is "science" because a scientifically illiterate legislator says so notwithstanding an amicus to the contrary signed by 72 nobel laureates. Gonzales - sanctity of life trumps a medical practitioner's concern about any level of human suffering. a skilled craftsman like J. scalia presumably can get from an a priori assumption to a result as easily and perhaps more convincingly than the most activist "liberal" judge.
ctw wrote:
This is accurate. Scalia is unabashedly majoritarian in his views - unless, of course, the majority goes against him. In this regard, he is very much like most conservatives. For example, when the courts overturn a state law throwing gay people in prison for sodomy, they scream about "unelected judges" overturning the "will of the people" and claim that his amounts to "judicial tyranny". But where was Scalia's majoritarianism and concern for the will of the people in the Oregon case? Their assisted suicide law was passed by popular referendum not once but twice, yet conservatives still ran to the courts to get those "unelected judges" to overturn the law. Ditto with California's medical marijuana law and stem cell research proposition, both passed by popular referendum and both immediately challenged in court by conservative groups. This is pure demagoguery, invoking the "will of the people" when it suits one's needs and ignoring it when it doesn't.
And yes, I'm aware that not all conservatives took those views. The more libertarian minded conservatives generally avoid this contradiction.