more critiques on Scalia & Dworkin hurray

 Even though Tribe’s account might lead to the promulgation of a “Living Constitution” which can render the court with too much lawmaking authority if the notion of the current meaning of the Constitution is utilized to further judges’ own ends, I would have to agree with him that both Scalia and Dworkin are overly self-confident about their take on originalism. I would like to dedicate this blog post to offer more points of criticism on both Scalia and Dworkin. Sorry y’all.

  1. On Scalia’s fixated focus on the dated meaning of the Constitution: Scalia emphasizes that statutes’ textual meaning should be understood in the moral context of its original time. He presumes the reasonableness of the legislative process to adhere to democratic procedures at the time of enactment. With the legitimacy of democratic actions, Scalia argues that government can be based on the rule of law, not of men which are possibly biased and arbitrary. Nevertheless, he acknowledges the underpinning principles of statutes can change as society progresses, but Scalia argues that any contemporary adjustment to the original intent should be made based on democratic procedures. I am skeptical of Scalia, because he does not acknowledge the necessity of time-dating when he argues for strict adherence to democratic principles. For example, the notion of freedom of speech as part of democratic ideals has drastically changed over time. In United States v. Eichman which involves the burning of the American flag, textual originalists would not argue against the unconstitutionality of burning a national flag, since the relevant constitutional provision that protects freedom of speech does not include non-verbal forms of protests. However, this does not mean that burning an American flag is at all constitutional, since the 18th-century definition of freedom of speech is narrower than the modern one where more channels of protest are explored. Scalia uncharacteristically voted for unconstitutionality in this case which is against his ideological grain, yet the problem with strict textual originalism remains. Even if the Constitution is written as a democratically legitimized document, textual originalists’ reliance on texts and concrete rules will inevitably become a limit on democracy itself. More fixed principles mean more restrictions, without considering the time-dating nature of democratic principles. An example that illustrates the importance of time-dating in legal interpretations is abortion laws. There are two distinctly different public opinions on abortion laws: pro-choice which supports abortion and pro-life which is anti-abortion. Legislation that appeals to pro-choice supporters inevitably means a trade-off of interests for pro-life supporters. According to textual originalism, abortion-related constitutional provisions are the golden rules to uphold. However, abortion services and technologies back in the day are not as developed as they are today, which can consequentially make the underpinning principles that guide abortion legislatures different. Abortion legislatures then cannot realistically predict the development of abortion services in the future to make an informed decision. It is undemocratic to disregard potential changes in democratic procedures as society progresses. People change. As much as democracy should be grounded in the will of the people, democratic procedures should be modifiable, too.
  2. On Scalia’s reasonableness standard: Like me and Grace discussed in Tuesday’s tutorial, what really is reasonableness? I would like to appeal to my non-ideal theory again here. It seems like Scalia is advocating that whatever is closer to the original meaning of the texts is better than statutory interpretation. And whatever is closer to means reasonableness to him. He is making a parallel between science and law here. There are truths and objective facts in science, but in laws, I would argue that only the statutes themselves are established objective facts that bind court decisions, but the mode of interpretation really isn’t so much a specified, standardized, undefeatable fact/truth. We are having this debate now, exactly because our texts are not as finite as Scalia presumes. At the end of the day, of course, we must respect what the texts say, but the texts themselves also do not specify which mode of interpretation we should adapt. Scalia basically assumes that his faithful adherence to the texts is a reasonable mode, while the texts don’t even specify/require such adherence. I think he forgets that he is also human at the end of the day, with unavoidable implicit biases. The way he defines and determines what is reasonable is also inevitably biased.
  3. So much on Scalia, now on Dworkin but briefly: Generally, Dworkin’s appeal to a morally coherent statutory interpretation really speaks to me. Dworkin suggests that the statutes set principles which the legislators intentionally invite future courts to engage in the philosophy of these abstract values, what the text truly means and how can they be applied to novel cases. Nevertheless, he is also making the same mistake as Scalia to assume that he or Dworkinian justices’ judgment of the abstract moral principles that legislators intend to embed in the texts. At the end of the day, how can you be sure or prove what someone is thinking when they write something down? From my language, you can probably tell that I am zoning out a little bit writing today’s blog - it’s been a long day and it’s 3 am right now. But, you never know or you can’t prove so, if I don’t tell you I was actually sleeping for the whole day and I am more than energized right now! For statutory interpretation, you can only infer their original intention, without fulling understanding or assuming oneself to fully understand what the texts mean. I’m not suggesting that the inquiry into what moral principles our founders intended to guide us to follow is a total failure. I am only questioning both Scalia and Dworkin’s self-confidence in their originalist appeal to be “closer to” our Founders’ intentions.

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