Tuesday, November 24, 2015

Keeping an Eye on the Originalist Fallacy

Justice Scalia/official portrait
When we interpret our American constitution, the question arises “Does one ask what the Framers said in 1789, or what they would have said 200 years later, or something in-between, such as what is the current meaning of what they said then?”

Judge Scalia is an "originalist." He subscribes to the view that we should interpret the constitution in light of what the Framers said in 1789.  He believes that if the framers believed the constitution was compatible with slavery, slavery can never be unconstitutional absent a formal constitutional amendment, like the 13th Amendment, which outlawed slavery in the United States. The constitution has a static meaning, he would say

Since the framers thought capital punishment was not cruel and unusual punishment when the constitution was drafted, originalists like Scalia argue that capital punishment can never violate the cruel and unusual punishment clause of the eighth amendment absent formal amendment. Most (I would hope) legal scholars, by contrast, would argue that our concept of what is "cruel and unusual punishment" can evolve over time. As Justice Kennedy said in Obergefell v. Hodges
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a re- ceived legal stricture, a claim to liberty must be addressed.
The import of what Kennedy says here is that, even though the death penalty may not have seemed cruel and unusual to the framers, it may appear so to us today, and it is the task of the Supreme Court to interpret the phrase "cruel and unusual punishment" in light of our modern sensibilities.

In addition to the question of whether it is appropriate for judges to look at the current meaning of the words in the constitution, originalists confront the problem of determining original meaning. Is it practical or reasonable to expect judges in the 21st century to be expert of how words were understood in the 18th century?

Last Sunday, Richard Primus, professor of constitutional law at the University of Michigan, pointed us to an example of Scalia making a broad and sweeping historical claim and getting it just plain wrong:  "Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom's foreign affairs,” said Scalia. In fact, the British Parliament had quite a bit of influence over foreign policy in the time of King George III.

Primus believes this example illustrates that even if we wanted to follow an originalist interpretation of the constitution, it is entirely impractical; every judge would need to have specialized knowledge which they don't have--and cannot have (because they are lawyers, not historians).

Here is Primus with his conclusion:
I don’t think that judges—even Supreme Court Justices—should be responsible to know how the British constitution worked more than two hundred years ago.  The world is full of specialized knowledge, and nobody can know everything, and federal judges have enough to keep track of without having to be historians, too.  ...  Instead, the point is that we should all expect that even our leading judges will not know what they would need to know in order to interpret eighteenth-century materials.... If a Supreme Court opinion by a leading originalist ... can open with an entire paragraph of historical fantasy, what hope is there for the practice of originalism in the courts more broadly?  We should not think “Look, sometimes it won’t work out, but most of the time it’s fine.”  We should think “Originalist interpretations are liable to be shot through with misunderstanding even under what seem like favorable conditions.”  
Scalia studied history in college, although this did not guard him against this particular mistake. Most lawyers have no training in history.

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