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November 16, 2007

Gray on the Alleged Contradiction Between Justice Scalia's "Originalism" and His Opposition to Considering Foreign Sources of Law

From the first comment by David Gray (Duke) in this thread I learned of his paper on "Why Justice Scalia Should be a Comparativist Sometimes".  The paper purports to show that "on pain of contradiction" (p. 1251, and elsewhere) Justice Scalia's originalism commits him to consulting foreign sources to ascertain the meaning of provisions of the Constitution, like the 8th Amendment prohibition on "cruel" punishments.

The argument involves two key, and distinct, theses.

First, Gray claims that the general provisions of the Constitution were taken to be "referring to objective and timeless moral truths" (1262).  For example, "'cruel' picked out an objective moral category [sic.--he means "property"]" (1263), whereas Justice Scalia thinks "cruel" in the Constitution "means only what those living in 1791 believed was right or, less powerfully, what they had not rejected as cruel" (1263).  These, Gray says, represent "two different meanings of 'cruel.'  One refers to an objective moral category, the other to subjective beliefs regarding the content of that category" (1264).  To focus on the latter "imposes on the document a brand of moral relativism that is not consistent with the fact that some constitutional language had objective moral meaning for the Framers" (1264).  Since originalism claims that "texts should be read for what they meant at drafting and adoption" (1265), we ought to treat cruel as referring "to an objective moral category."

Second, Gray claims that the best way to think about objectivity is in terms of "intersubjectivity," that is, as what would emerge "through substantive and open exchange with others who have an interest in the answer" (1274).  (The footnotes cite Habermas in this regard.)  So, I take it, "cruel" punishments are just those about which would emerge an intersubjective consensus (during a "substantive and open exchange") that they are cruel.  Foreign sources of law are, then, taken to be among the pertinent inputs to this "substantive and open exchange" which allows us to pick out what is objectively cruel.

Gray does not appear to realize that the second thesis defeats the central argument of the paper, namely, about Scalia's self-contradiction.  Perhaps it is true that the "original" meaning of "cruel" took it to refer to what is really and genuinely cruel, i.e., "objectively" cruel.  Someone might accept that claim, and still deny that "objectivity" should be understood as Habermas understands it.  After all, it is surely incredible to suggest that the original "meaning" of cruel was that it referred to objective cruelness, as "objective" would be understood by Habermas!  But anarchronism isn't the real issue.  Gray has to show that the Framers understood "objectivity" his preferred way in order to show that Justice Scalia contradicts his own originalism by failing to attend to foreign sources.  He does not even gesture at such a showing, apparently not seeing that it undermines his claim about contradiction. 

Here's another way at the same point:  suppose Justice Scalia morphed into Justice Dworkin, and so agreed that a prohibition on "cruel" punishments is meant to prohibit the punishments that are really cruel.  But Justice Dworkin believes that the way to figure out which punihsments are really cruel is to engage in systematic moral theorizing and argument.  There is nothing in the claim that "cruel" means "objectively" cruel that rules out that possibility (among many others).  But if that's what objectivity requires, then there is no special reason to consult foreign sources.

(I have another worry about Gray's second claim:  Habermas's understanding of objectivity as intersubjectivity may actually be inconsistent with what is alleged to be the original meaning of "cruel."  For it seems--Gray isn't, in my view, clear about this--that on the Habermas view, the objective referent of a moral term like "cruel" is constituted by intersubjective agreement [under the right conditions] about that referent, which is not really a view that any moral realists would, in fact, accept as adequate to their realism.  Maybe someone can think of a counter-example?)

Now let's return to the first claim, namely, that the original "meaning" of cruel refers to those punishments that are really or objectively cruel.  This is a general line of thought that has been developed by a number of legal philosophers (David Brink and Michael Moore most prominently, but also Nicos Stavropoulos in his book Objectivity in Law, which supplies what Stavropoulos takes to be the requisite semantics for Dworkin's theory).  Gray is oddly silent on this literature.   

Contrast two competing views of meaning, what I'll call (following the standard conventions) the Causal Theory and the Empiricist Theory.  The Causal Theory claims that the referent of a term fixes its meaning, and that the referent is whatever was so "baptized" when the term was first used.  ("Cruel" is just whatever is essentially characteristic of the punishments first dubbed "cruel" way back when, whether or not those using the term appreciated what those essential features of "cruel" punishments were.)  The Empiricist Theory claims that the meaning of a term fixes its referent, and that the meaning is given by the various descriptive statements that competent speakers of the language would associate with the term.  (So, crudely, "cruel" punishments are just those that competent speakers of the language would take to be cruel.)

We can now restate Gray's first claim as follows:  the Framers thought of the meaning of "cruel" in a way best-captured by the Causal Theory, whereas Justice Scalia thinks of the meaning of "cruel" in a way best captured by the Empiricist Theory.  Therefore, Scalia is not really being an originalist about the meaning of "cruel" because he is construing its meaning in a way that would be unrecognizable to the Framers.

One has to be cautious when ascribing semantic theses to writers who are neither self-conscious about semantics nor explicit about staking out philosophical positions about meaning.  I am not convinced that Gray is correct in ascribing the Empiricist Theory of meaning to Scalia.  The key passage is footnote 85 (p. 1263), where Gray quotes Scalia affirming his commitment to natural law, and then saying, "The issue is whether it was supposed to be left up to nine lawyers to figure out for the whole country what the natural law is.  And I don't think there's anything in the mind of the framers that would suggest that."

The way I read this remark, in the context of this debate, is as follows:  the Constitution may, indeed, have been intended to prohibit what is really or objectively cruel ("metaphysical" cruelty), but that still leaves us with an "epistemic" problem, namely, figuring out what punishments are and aren't "cruel."  So what Gray would treat as Scalia's embrace of the Empiricist Theory of Meaning is nothing of the kind:  it is an attempt to solve the epistemic problem that is presented even if we agree that the Causal Theory is the correct account of meaning.

Now why adopt that solution to the epistemic problem?  An answer is suggested by Gray's discussion in Part IV (though Gray himself isn't trying to make this point, but it was suggested to me by the discussion there).  Justice Scalia's skepticism that "evolving standards of decency always mark progress" as opposed to "rot" (quoted at 1266) is just another version of the epistemic worry:  even if the 8th Amendment is supposed to prohibit those punishments that are "really" or "objectively" cruel, our epistemic limitations are such that there is no reason to be confident that in trying to discover the 'essence' of cruelty we won't do far worse, morally, than if we just adhere to the understanding of what cruelty really was held to be by the Framers.  So this does not commit Scalia to denying (as Gray would have it) that the Causal Theory of meaning is the correct account of the metaphysics of meaning; it just commits him to holding that the correct metaphysics of meaning (by hypothesis, the Causal Theory) still leaves a daunting epistemic problem.  Scalia proposes solving the epistemic problem via a different kind of originalism, one that treats the original understanding of what is "really" cruel as the touchstone for constitutional interpretation.

Posted by Brian Leiter on November 16, 2007 in Legal Theory | Permalink


While Gray's criticisms don't quite hit the mark of Scalia, that's not to say that he emerges unscathed from any attack.

In a sense, Scalia is a confessed comparativist with respect to the interpretation of treaties. As to the Warsaw Convention on Air Transport, Scalia has said, "When we interpret a treaty, we accord the judgments of our sister signatories considerable weight" because "[f]oreign constructions are evidence of the original shared understanding of the contracting parties", so "[w]e can, and should, look to decisions of other signatories when we interpret treaty provisions." (These quotations from Olympia Airways v. Husain).

Here, I'm not so sure that Scalia isn't doing something curious for an adherent to the causal theory of meaning, via appeal to "original shared understanding of the contracting parties". On the one hand, Scalia is the one who distinguishes his textualist originalism from that of, say, Bork by saying that he doesn't care what the legislative intention was - he cares only about what the words would have been understood to mean when published.

From Scalia's Tanner Lectures:

"I will consult the writings of some men who happened to be Framers - Hamilton's and Madison's writings in the Federalist, for example. I do so, however, not because they were Framers and
therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus, I give equal weight to Jay's pieces in the Federalist, and to Jefferson's writings, even though neither of them was a Framer. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended." (p. 112)

But how exactly would contemporary decisions on Article 17 of the Convention, some of them by avowedly consequentialist foreign judges dismissive of textualism, shed light on the original meaning of, say, the term "accident" as used therein? And by his reference to "understanding of the contracting PARTIES", that rather shows a lot of interest by Scalia in "what the original draftsmen intended."

On another front, Scalia believes that the equal protection clause of the 14th Amendment doesn't protect against discrimination on the basis of sex. Now, this should be somewhat damning, because what toasted Bork at his confirmation hearings (among other irrelevant things, like his facial hair and the fact that he was somewhat genuinely forthright in his responses) was that his theory of interpretation couldn't explain the result in Brown v. Board of Education; the people that passed the 14th Amendment in Congress also funded segregated schools in Washington, DC. Scalia would, by contrast, be able to come in and say that "equal protection" had a public meaning when the words were put into the Constitution, and so, he doesn't have to bother with what the legislators thought they were doing. But here is Scalia, from his Tanner Lectures, again:

"Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted,
and hence did not in 1920, guarantee equal access to the ballot, but permitted distinctions on the basis not only of age, but of property and of sex. Who can doubt that, if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the chosen instrumentality of change? The American people have been converted to belief in The Living Constitution, a 'morphing' document that means, from age to age, what it ought to mean."

Now, Scalia can hold to that position if he likes, but then he would have to, I think, say that the 14th Amendment doesn't forbid racially segregated schools, either; and then he can explain to us that intellectually honest position (which would've assured his rejection to the Supreme Court, if known then), or he can set about - as Bork unpersuasively did - stating some half-assed explanation of why he's just going to read it the way that the Court did in 1954 because that's just the right thing to do, the rest of his "theory" of interpretation aside.

Scalia judges the Constitution "a democratically adopted text." (p. 113). The real vice of the liberal activists, he thinks, is that they've taken away what the democratic process can nowadays do. Here's what he says:

"Historically, and particularly in the past thirty-five years, the 'evolving' Constitution has imposed a vast array of new constraints - new inflexibilities - upon administrative, judicial, and legislative action. To mention only a few things that formerly could be done or not done, as the society desired, but now can not be done:

admitting in a state criminal trial evidence of guilt that was
obtained by an unlawful search;

permitting invocation of God at public-school graduations ;

electing one of the two houses of a state legislature the way
the United States Senate is elected (i.e., on a basis that does not
give all voters numerically equal representation) ;

terminating welfare payments as soon as evidence of fraud
is received, subject to restoration after hearing if the evidence
is satisfactorily refuted;

imposing property requirements as a condition of voting;

prohibiting anonymous campaign literature;

prohibiting pornography." (p. 115).

Now I don't personally agree with everything on that list being proscribed (I'm agnostic on the exclusionary rule given the way that it's arguably eroded privacy), but it's rather difficult to believe that our democratic process would be just peachy if a state or local government could require ownership of a certain acreage in order to have one's ballot counted. The political philosophy on which the dead hand of the past imposes its norms on the present in Scalia's jurisprudence is self-evident.

But lest one be left with the impression that the Constitution imposes no bounds on the the democratic process and its results, here's Scalia, again from the Tanner Lectures, on an issue he'll be invited to pass judgment on in the context of gun control in Washington, DC:

"[W]e value the right to bear arms less than the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the State National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights." (p. 116).

Again, is it an issue of what the framers THOUGHT, or a question of what they WROTE meant at the time it was published? Does textualism entail my looking to see what the relevant terms and clauses of the 2nd Amendment meant in the late-18th century, or does it mean that I should imagine the results of a public opinion poll in those days and apply that result to the machine guns of today? I'm left with the distinct impression that Scalia's political agenda is driving his theory of interpretation, which at all events, seeks to impose the understandings of men long dead on today's living people.

Posted by: cosim | Nov 24, 2007 7:22:00 PM

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