Southern Appeal - "With a rebel yell, they cried more, more, more!"
James Madison had a great quote around 1820 (in a letter to Edward Everett) re limits of textualism, ie how words change over time.
He also stated that interp of the Const should turn on understanding of it in state conventions.
The classic statement of why original intent alone works as a method constl interpretation.
I'll respond later, but I think the crux of our dispute is whether certain words and phrases have a determinant meaning (i think many are boundedly - not infinitely - indeterminant). your claim that you are "interpreting" the law assumes that these things are more fixed than they are.
you're also misrepresenting my form of pragmatism. i go out of my way to say that such inquiries should be limited only to areas where multiple outcomes are textually plausible. my point is just that, when choosing among them, why not incorporate policy into the analysis.
Although I pretty much disagree with everything you say, you say it well. Scalia would be proud. 
Thanks, TP. That's a high compliment. 
Feddie, don't hold back, tell us how you really feel!
Unfortunately, none of what you say here will affect in the least Justice Kennedy's future behavior or that of any other justice. But this will.
Scalia's dissent seems to suggest that he thinks that nothing about the Constitution can change; the set of things picked out by the constitutional language should always be exactly the same. But the set of things language picks out--the reference, denotation, or extension--depends on both (a) the meaning (or sense, intension, or connotation) and (b) the state of the world. As the world changes, the extension of the constitutional language can change.
That's just silly, Chris. Of course the Constitution can change: Via Article five amendment. But the authors of dictionaries aren't entitled to bypass that procedure, and neither are judges.
Article V. What's the point of having all those procedural safeguards, one required supermajority vote after another, if a bare majority of the Court is going to be entitled to change the Constitution at whim? It's like building a bank vault, carefully locking it, and leaving a ten foot hole in the back wall!
I have NEVER heard a good excuse for why the courts should be able to change the Constitution without getting the states' permission, but Congress shouldn't. I don't think there IS a good excuse.
Karl
Unfortunately, from your perspective, your move to impeach Kennedy will be about as effective as those "Impeach Earl Warren" bumper stickers were.
Feddie
I don't have the legal education that either you or Publius have, but as a layman in that area I have to say that I agree with Publius' statement about the near-religious outlook originalists seem to have. The semi-deification of the founders is something that I don't think they would have wanted for themselves. They wanted to set up the best government they could with the most freedom for people (given their 18th century outlook) that was possible.
So the question is, did they expect people 200 years later to slavishly adhere to a perception of their views or would they have expected people to provide the best government possible with the greatest freedom possible given the evolving nature of mankind?
I respect your opinion that you would like to see an amendment on the issue rather than a judicial ruling, but the Court, I belive, has the duty to interpret the Constitution. I think we would be well on our way to an even more dysfunctional government if we had to have an amendment for every issue like juvenile death penalty, what actions/displays constitute establishment of relgion, what exactly is a well-regulated militia, does interstate commerce include pollution crossing state boundaries and a host of other issues.
My favorite amendment would ban the court from using originalist thinking. OK, I'm a bit overboard on that, but heck, I'm a liberal.
I certainly don't think that "a bare majority of the Court is ... entitled to change the Constitution at whim." I think that, while the sense of the Constitution is fixed, the reference-yielding facts can change. This is no different from what Justice Sutherland said for the Court in 1926 in Euclid v. Ambler Realty (a note echoed in his Blaisdell dissent): "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…" I'm also not saying anything so different from what Robert Bork said in defense of Brown: the original understanding only yields a fact-unsaturated major premise, not a conclusion.
Tomeck,
Human Nature does not, cannot, evolve. If it changes, humans do not have a nature. If humans have something fixed in them, then that which is fixed cannot evolve.
Of course the Founders did not want to be deified. That is not the point. Rather, the principles enshrined in the Declaration and institutionalized in the Constitution do not change. They remain constant. Their application may change, but that is far different from saying that the meaning of "cruel and unusual" depends on how many states have outlawed juvenile capital punishment.
The words and principles of the Constitution have a definite meaning. That meaning is revealed when read in the light of the principles that gave the Constitution life; i.e. the Declaration and the political philosophy of the Founding.
For more on the sense/extension distinction--which is the fundamental, fatal flaw in Scalia's version of originalism--read this article:
"The Meaning of Original Meaning", Mark D. Greenberg and Harry Litman, 86 Geo. L.J. 569.
For a succinct example of what we're talking about, read this, from another blog comment a few weeks back:
"In thinking about Constitutional interpretation, it's really, really important to distinguish between the meaning of a word and its extension: the set of things it applies to. 'Circle' means a figure all of whose points are equidistant from its center. (Or something like that; I am not a mathematician.) Its extension is the set of all such figures.
The extension of a term can change for all sorts of reasons, like (for instance) advances in knowledge, which lead us to say that something that did not seem to be an X in 1789 actually is one. (Here consider 'poison': we can discover that something is a poison that was thought to be benign in 1789.) New Xs can come into being (thus, the citizens and persons who now exist are different from those who existed in 1789.) In some cases, we can create new Xs.
When the extension changes but the meaning remains the same, you have to choose which to care about. You can't preserve both. Consider the question: when the Constitution says various things about 'States', should we interpret this term to refer only to the original 13 states, or to all the states that now exist? Sticking to the meaning of the term yields the conclusion: the present 50. Sticking to the original extension yields the conclusion: the original 13."
Here are some constitutional questions that ask about original sense:
When they say that "cruel and unusual" punishments are prohibited, do they mean "cruel and uncommon", or "cruel and excessive", or is it a commonly known term of art such that cruel and unusual cannot really be separated?
When they give Congress the power to "declare war", do they mean "start a war", or "give official legal recognition to a state of war", or something in between like "start a war by declaration as opposed to action"?
When they talk about a right to a jury trial in "all suits at common law", is that a term of art--law as opposed to equity suits?
Here are some questions about the original extension/denotation/appplication of a clause of the Constitution:
"Does the cruel and unusual punishment clause ban flogging? Castration? Cutting off an ear? Execution? Execution for consensual sex or petty theft?"
"Does the equal protection clause ban legal segregation of the races?"
"Does the equal protection clause ban laws against miscegenation?"
"Does the equal protection clause prevent us from denying women the right to vote or the right to practice law? What about denying gay people the right to vote?"
"Does the first amendment protect forms of political expression other than nonverbal communication?"
Scalia argues the answers to both sets of questions are dispositive:
"When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices are to be figured out."
He actually interprets "expressly prohibited by the text" pretty broadly at times. He claims, for example, that
"In my view the Fourteenth Amendment's requirement of 'equal protection of the laws,' combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid."
I find this to be results-driven, pretty transparently results-driven. These were two amendments passed separately. What does a categorical ban on slavery tell us about what it means to deny someone the equal protection of the law? It doesn’t address the separate but equal argument at all. The text of the 13th amendment doesn’t use the word “race” anymore than the 14th amendment text. There’s historical evidence that it’s all about race, but there’s also historical evidence that it was widely thought to allow racial segregation and bans on miscegenation, and those were widespread practices both before and after the amendment was passed.
I think it is pretty clear why he makes this argument: he does not want to accept that his theory argues that Brown v. Board of Education and Loving v. Virginia are wrongly decided.
One final note. Your theory is immoral not just because it reaches bad results. It is immoral in itself. The "supermajority" you invoke was a pathetic minority of the people who should've had the right to vote. To bind us not to their words, but to everything in their heads, is immoral. And to argue that their understanding of the words "cruel and unusual" is fixed and unchanging is just plain stupid. They practiced slavery, for God's sake. I know you know it, but apparently you don't take it seriously or the difference between original sense and original extension would be clear. Thomas Jefferson wrote that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness;" Thomas Jefferson owned slaves, and I'm not sure he was so hot on women's sufferage. So. Were slaves not men? Or did u
(sorry--ctd.) So. Were slaves not men? Or did unalienable not mean what we think it means? Or are life, liberty and the pursuit of happiness compatible with slavery? It's got to be one or the other, because surely the original practices shows us the unchanging meaning of the words.
Jefferson's just one man, but there's no reason a group of men couldn't have made the same sort of errors he did.
And before you respond to me, please understand that I am NOT arguing that the Constitution is illegitimate. Fortunately, the framers, whatever their limitations, were generally smart enough to only write their ideals and principles and their design of the government into the document--they didn't write in the text the thousands of ways they failed to live up to their ideals. They ratified a Constitution. It's you who have fooled yourself--and fooled yourself because it serves your political interests; you're too smart to have made the sense/extension error otherwise--wants to pretend they ratified the combined penal codes of the thirteen colonies.
I just want to know where in the Constitution it says that judges should be originalists in interpreting it.
Of course, I could never get past page 3, so maybe it's at the end somewhere.
Mr P wrote my comment for me.
Somewhere up there Feddie wrote -- the Constitution says what it says, and we're stuck with it (stating desire generically to see it amended to abolish DP, abortion, etc).
Um, I see the Constitution saying "cruel & unusual" punishment is forbidden.
I DO NOT see, ANYWHERE, a directive that all words, terms & concepts in this document are to have only the meaning & reference of 1791.
When we are one of a handful of states in the world that executes people for committing crimes as juveniles, when in the last fifteen years 5 (?) states abolished this practice, other states & state leg. have even called for general moratoriums of their DP (my state, Nebraska did so, altho perhaps our dumbass governor, Johanns, vetoed, I cannot recall), I think it is eminently fair to regard the practice as both cruel & unusual.
J-
I think you need to reread the post. And when you do, here are three words to focus on: text, structure, history. You need all three to properly interpret the Constitution.
J,
"I DO NOT see, ANYWHERE, a directive that all words, terms & concepts in this document are to have only the meaning & reference of 1791."
I agree regarding reference, but I disagree regarding meaning. The Constitution's self-referential "this Constitution" and "herein" clauses seem to point to the text as the supreme law of the land, and it's only the historically embedded text--i.e., the historical sense--that fits.
I think that a historically-situated textual assertion of power is the only thing that can fit all of the usages of "this Constitution" in the Constitution itself. That means we should be some form of originalist textualists.
Here are the "this Constitution" clauses:
Preamble: "We the People of the United States, in Order to ... secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution."
Art. 1 sec. 8 cl. 18: Congress has power regarding "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Art. 2 sec. 1 cl. 5: reference to "the time of the Adoption of this Constitution."
Art. 3 cl. 1: reference to "Cases, in Law and Equity, arising under this Constitution."
Art. 4 sec. 3 cl. 2: "nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States."
Art. 5: reference to "Amendments to this Constitution" and to amendments becoming "valid to all Intents and Purposes, as Part of this Constitution."
Art. 6 cl. 1: reference to "Debts contracted and Engagements entered into, before the Adoption of this Constitution" and to validity "under this Constitution."
Art. 6 cl. 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Art. 6 cl. 3: Officials to be "bound by Oath or Affirmation, to support this Constitution."
Art. 7: ratifications of nine states "sufficient for the Establishment of this Constitution."
Here are the "herein" clauses:
Art. 1 sec. 1: reference to "Powers herein granted."
Art. 1 sec. 9 cl. 4: reference to "the Census or Enumeration herein before directed to be taken."
Art. 2 sec. 2 cl. 2: reference to those "whose Appointments are not herein otherwise provided for."
"Why spend all of that precious time debating the meaning of the words to be used in the Constitution if the framers' understanding of those words made no real difference?"
Believing that the meaning of the words of the Constitution can change over time IS NOT THE SAME THING as believing that the "words made no real difference."
Yes, after deliberating all that time, they purposefully choose to write parts of the Constitution in broad generalities using terms like "Cruel and Unusual Punishment."
Jon-
That's just silly. You're too smart not to acknowledge that those words cannot be interpreted apart from their common law heritage.
Jon,
I'm not sure what could make the meaning or sense of the constitutional language change over time. I do have an idea of what could make the reference change over time--changes in the reference-yielding facts. But a change in the ways that people tend to use a word like "cruel" doesn't seem to make any change in the meaning of the word as used on a particular occasion in 1789. I'm not sure, though, if that's the sort of thing you have in mind.
Excellent post, Steve (that's not to say that I agree with you, though). And you defended originalism without resorting, as your co-blogger did, to name-calling of a sitting Supreme Court justice.
Style aside, one thing in particular about Justice Scalia's approach to the Eighth Amendment leaves me perplexed. If the prohibition on "cruel and unusual" punishment really just proscribes punishments 'out of [the Judges'] Power' that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges," then how does the Amendment have any meaning at all? The originalist view renders the Eighth Amendment superfluous, as it essentially merely forbids a judge from doing what extra-constitutional sources already forbid a judge from doing. We don't construe the other enumerated rights by reference to legislative pronouncement--for instance, we don't say that any search or seizure deemed reasonable by statute is per se reasonable.
My question: If Justice Scalia (and Steve) are correct, then why bother to include a prohibition on cruel and unusual punishment at all? How is the cruel and unusual clause of the Eighth Amendment, under the originalist view, anything other than a useless appendage?
Steve, you fool! Now that you've shown you're a minor deity, you can never hold a judicial or elected office.
Okay. Maybe I didn't choose my words carefully enough. Cruel and Unusual is a general phrase. We could look the words up in a present era dictionary and in a founding era dictionary and expect to find very similar definitions.
And from a Constitutional perspective, the general words ought to mean the same things today as they did back then. However, what we specifically think of as "cruel and unusual" changes with the time.
For instance, many things which the founders didn't think of as "Cruel and Unusual" we rightly think would be today.
At common law, as far as I know, the defining feature of a felony was that it merited the Death Penalty. Common law didn't think of executing burglars as "cruel and unusual" punishment, but certainly, we do today.
Is that wrong? Should a state be able to execute burglars? Or any felon?
The founders did indeed think long and hard about exactly how to word the document. Certain phrases are very specific, others very broad and general, and others in-between.
From a purely textual perspective, those broad generalities, in my mind, have "built in" flexibility -- meaning the specific way in which we apply the unchanging general norm changes over time.
There is nothing wrong with such evolution of Constitutional doctrines. The common law itself was and is an evolving body of law. And as time goes on experience yields more information, allowing us improve upon the past, while retaining what is good about it.
Donald-
Thannks! I will try to respond to your post ASAP.
Question: The Magna Carta's "meaning" has evolved since 1215 hasn't it? Didn't we base the Constitution in part on the Magna Carta?
On a side note - A state, I think Iowa, around 1900 passed a law that pi was "3". I think they based it, in part, on some passage in the Bible; however, the main reason was to make calculations involving pi simpler. The idea was that other weights and measures could be defined - why not pi? Obviously this was a terrible idea.
What is the point? Just because a methodology is easier, structured (not based on something infinite and transesential), and based on something really old (but ambiguous) - that does NOT mean that is the method you should be using. Especially when everything you build with it is a terrible mess.
I think any "insanity" charges are justified based on the unfairness of your response. You consistently paint Publius as a left wing, purnumbra lover - yet he specifically disavows such interpretations. That rhetorical trick is dishonest.
I don't know why one would want the states to be able to execute 7 year olds. It is too easy to wash ones hands - "that isn't what I want - I just have to apply the law..." That is an immoral abdication of ones moral responsibilities as a human being. We can not ignore the consequences of our choices and actions. I hope every originalists soul is able to accept its complicity with such evil acts and results.
There is a choice - we can worship the false god of "originalism" and reject our moral responsibilities, claiming "duty" to the Consititution. Or we can accept a moral duty and allow the constitution to evolve. Face it, that is one way judges work. You don't have to support evil. I don't understand how one supports Southern Republicans - all for the death penalty. The world is what we make of it. By alinging oneself with those who spread such wretchedness, well, we get what we deserve.
FP-
Your name says it all.
BTW, you will note that I oppose the DP.
Oh, and I suppose you think it is perfectly acceptable to support the dems, who advocate killing defenseless babies (i.e., abortion on demand).
Think about this: What's the Dictionary definition of the term "unusual"? Doesn't in mean, very "uncommon"? Doesn't it then follow that if an overwhelming majority of government entities have given up on a particular practice, considering it to be "cruel and unusual," that something that was accepted during common law and hence Constitutional punishment during the Founding could change and later become unconstitutional after a certain critical mass of states gave up on the practice.
Even Scalia -- if I properly understand his jurisprudence -- believes that constitutional meanings evolve over time, so long as 1) the evolved meaning doesn't flout the "text" of the Constitution (it must be consistent with Constitution's text), and 2) it becomes engrained into our "traditions": long, hard and deep.
Jon-
You are mostly correct in your analysis of Scalia's form of originalism (which I would call Burkean Originalism). That's why I am a Thomas man.
I like Thomas too. In the future, I'm going to post about natural law, which Thomas endorses and link to a great debate that's accessible on NR archives between Bork, Lino Graglia, and Harry Jaffa.
They criticize Jaffa's point of view, which Thomas endorses, on the grounds that it is another form of "liberal activism."
Katherine...and other textualists...I'm not legally trained whatsoever...but I can spot bullsh*t when I see it. To illuminate the issue to you and your kind...
If a psychopath had written a letter thirty years ago stating that next year he was was going to kill you and your family...would you like the police to interpret the letter using the new meaning of "to kill" (namely, to do really well...make a lot of money...etc...i.e. the way the word is used now)...or would you rather the police interpret "to kill" the way the author of the letter had intended? Shoot...Publius even makes my argument for me...by using the word "cool" as an example of a word that has multiple meanings...one of which...has been generated within fifty years (i.e. "that's cool"...as in that's neat/unusual...etc...).
You guys are playing with words...but your intent is hostile to the US Constitution. There are no ifs...ands...or buts...about that.
Jesse,
I'm a textualist, and I think the collection of things falling under the Constitutional language can change, but I thought I was pretty clear that the sense of the constitutional language is fixed at the framing.
One of the things that you law students need to understand is that the courts don't just interpret the law. They apply the law. And, in applying the law, the courts need to determine just what the law is when they apply "the law" to the respective case at hand. When you learn the distinction, then you might be useful.
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