Sign in to follow this  
Followers 0
Nodrog

Justice Scalia, and Originalism

19 posts in this topic

I'm not American but I have a passing interest in American law, stemming from my respect for the principles the society was founded on. I've noticed that on several occasions, Justice Scalia has come in for criticism from both Objectivists (not on this forum) and libertarians. I find this confusing because, based on my limited information, he is the Judge that seems most concerned with objective law and original intention. In particular, I've just finished reading a transcript of his speech here where he gives a brilliant and principled account of his approach to Constitutional interpretation, with which I agree entirely.

So, are there any problems with Scalia that I'm unaware of? Do any people share the hostility towards him which I've seen elsewhere, and if so, could you tell me why?

Share this post


Link to post
Share on other sites

So, are there any problems with Scalia that I'm unaware of? Do any people share the hostility towards him which I've seen elsewhere, and if so, could you tell me why?

Let me preface my comments by saying first that I've always enjoyed listening to Justice Scalia speak - he's cogent, witty and knows how to deliver a speech. I've also enjoyed reading his legal writings, if for no other reason than the fact that he usually has a very logical mind.

That being said, I must strenuously disagree with both him in this speech and in his approach to the Constitution.

If I were to nail it down to one thing, I would say that I disagree with Scalia on epistemological grounds. Scalia thinks that freedom is a frozen abstraction, like the ten commandments handed down from God, rather than a principle.

Scalia's method in reading the constitution is as follows: what did the founding fathers mean when they wrote this 200 some odd years ago? Now, if we are dealing with issues of economic freedom, the results aren't so awful - in fact today we all would applaud them. But this is a faulty method of thinking and of jurisprudence. It essentially "freezes" the concept of freedom and of rights to the 18th century.

As a good example, consider when we come to the present day. A man (Lawrence) is arrested in Texas because police (entering his home) find him having anal sex with another man, which is a crime in Texas. The case comes before the Supreme Court, and Justice Scalia again returns to his familiar method. What did the founders mean when they wrote of a right to liberty? Well, thinks the erudite Scalia, they certainly didn't mean the right of two men to engage in homosexual acts! In fact, those acts were crimes in many states at the time of the ratification, and have been for centuries. The Constitution doesn't mention sex in it (and certainly not the homosexual type), so therefore Texas has legitimate authority to outlaw this practice, and to punish people who engage in it.

The problem, which should be apparent, is that consensual sexual acts (between adults) do not violate anyone's rights.

Furthermore, Scalia's method of interpreting the Constitution is wrong (in my opinion) on Constitutional grounds! The Ninth amendment of the Constitution (probably the most brilliant amendment, imho) says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

You don't have to be an Objectivist to understand what that amendment says - the amendments preceding the Ninth not only are not the only rights of the individual, but furthermore all rights not listed here are retained by the people. Properly understood, this amendment sets the proper relationship between the individual and the government. It sets the onus on the government to justify taking any action against the individual, and gives the presumption of sovereignty to the individual.

When Scalia takes the position that the government has the authority to arrest homosexuals, who have violated no one's rights, what he is doing is the exact opposite of upholding the Constitution (which is a restraint on the government, not the individual) - he is granting arbitrary powers to the government and rejecting the concept of individual rights.

PS - For those interested in an objective approach to evaluating judges, I would suggest reading this op-ed by Tara Smith (thanks to Don for the link).

Share this post


Link to post
Share on other sites

I agree that his Woodrow Wilson Center talk is inspiring and all, but I have concluded that it's a pack of lies.

I have, at times, considered Scalia's approach to be preferable, but I managed to free myself from that delusion over the past few months, especially reading decisions and dissents that he has written. As an important correction regarding Scalia's position, he advocates using original meaning and not original intention -- he has scathing remarks to be said about this intention nonsense. In other words, he says "If the law says X, then do X", and issues of intention are just plain mysticism. (There is an excellent case illustrating the proper use of "legislative intent" in US v. Pabon Cruz, which, alas, Scalia had nothing to do with -- it would have been interesting to see how his much-vaunted literalism handled this case). What's wrong with this? First, although I think he's generally better than most judges at paying attention to what the law literally says, he is quite capable of issue silly fiat declarations of the type "The language of the statute is plain", when it is overtly non-plain and highly ambiguous. Second, he is nothing more than a legal positivist, who sees the law as an end in and of itself. The right view of law is that laws protect man's rights, and when the statement of the law blatantly fails to fulfill its function, it is the duty of the judge -- especially one on the Supreme Court -- to find that law lacking and to reject the law.

This does not mean that his personal biases are, on average, more wrong than right, though from what I can tell, he is always wrong about sex and religion. But personal bias isn’t an objective basis for law. Even though he claims to read law strictly, I simply don't see that. He will use "literal interpretation" when it suits his purposes, but he will also use common sense if that's what's necessary, or precedent. The one thing that does not seem to do is apply interpretive rules such as the last antecendent rule or the and/or rule to figure out what an ambiguous law says. Instead, he simply declares "the meaning is plain". Pfft.

Share this post


Link to post
Share on other sites
If I were to nail it down to one thing, I would say that I disagree with Scalia on epistemological grounds.  Scalia thinks that freedom is a frozen abstraction, like the ten commandments handed down from God, rather than a principle.

But he doesnt believe freedom is a frozen abstraction. He believes that it isnt SCOTUS's job to bring freedom to the country, but to read the Constitution as it was written. If you think that judges should base their decisions purely upon a desire to increase freedom, then you dont need to have a Constitution in the first place - you only need a one line memo telling SCOTUS to make rulings based on 'human freedom'.
Scalia's method in reading the constitution is as follows:  what did the founding fathers mean when they wrote this 200 some odd years ago?
That's incorrect. Scalia has stated that he doesnt believe Judges should try to engage in mindreading. Its not a case of what the writers 'meant', but how the written words would have been interpreted by a reasonable speaker of the language at the time it was written.
Now, if we are dealing with issues of economic freedom, the results aren't so awful - in fact today we all would applaud them.  But this is a faulty method of thinking and of jurisprudence.  It essentially "freezes" the concept of freedom and of rights to the 18th century.
But as Scalia points out, the Amendment process exists for precisely this reason. Roe vs Wade is a good example - the Constitutional 'right' to have an abortion was obviously pulled out of thin air, but this doesnt mean that abortion should have remained a state-level issue - a new Amendment would have been the correct way to give people freedom while also respecting the objectivity of law. I live in Britain, and our legal system seems to give judges the ability to make up the law as they go along. If you want to have a proper seperation of power between the Executive and Legislative branches, then you need to limit the power of judges to what written law actually says, rather than what they/you want it to say.
As a good example, consider when we come to the present day.  A man (Lawrence) is arrested in Texas because police (entering his home) find him having anal sex with another man, which is a crime in Texas.  The case comes before the Supreme Court, and Justice Scalia again returns to his familiar method.  What did the founders mean when they wrote of a right to liberty?  Well, thinks the erudite Scalia, they certainly didn't mean the right of two men to engage in homosexual acts!
Scalia is correct here - the Constitution doesnt mention sexual freedom. Did the founders think the right to liberty meant that slavery should be outlawed? If so, whats the point of the 13th amendment?

Furthermore, Scalia's method of interpreting the Constitution is wrong (in my opinion) on Constitutional grounds!  The Ninth amendment of the Constitution (probably the most brilliant amendment, imho) says:

You don't have to be an Objectivist to understand what that amendment says - the amendments preceding the Ninth not only are not the only rights of the individual, but furthermore all rights not listed here are retained by the people.

I think thats a really bad amendment and dont think it should have been included. The problem is that it could be interpreted to mean almost anything - is there a 'right to healthcare' that exists though wasnt enumerated in the Constitution? What about a right to education? The Constitution gives no definition of what rights are, so if you want the 9th Amendment to be invoked to justify the creation of non-written rights you believe should exist, you can hardly complain if others use it to justify non-written rights you believe shouldnt exist.

Share this post


Link to post
Share on other sites

The problem I think many people ascribe to Justice Scalia is exactly the one expressed in post #2, that he supposedly believes that the jurisprudence of this country ought to begin and end with the 18th century, and not further. But as Scalia has said on numerous occasions, that could not be more contrary to the truth. What he is concerned about is not keeping the law on the level of the 18th century, but to keep the context of the original law of the Constitution on the level of the 18th century. For Scalia, it is not impossible to for abortion to be legal, even if it would be illegal in the 18th century America -- it is the method by which it is to be made legal that Scalia puts all of his emphasis on. The proper method is not to stretch the meaning of the Constitution to fit the whatever standards are appropriate for the day, but to amend it, and make one's change of the law in the country explicit and open, rather than implicit and covert. That is the fundamental problem Scalia has with modern jurisprudence, and why I support him wholeheartedly on this issue -- on epistemological grounds, he is exactly right, and the context of the Constitution must be kept in mind at all times. The proper way to do things is not to stretch the meaning of the Constitution, and say, "Oh, the Founders actually meant that women should be allowed to vote," but to make an official amendment that acknowledges the context of the document, and makes and official correction to it. Scalia and the "originalist" view of the Constitution are not in any way opposed to new laws and improvements upon the original document, which is why I support them both.

Share this post


Link to post
Share on other sites

But he doesnt believe freedom is a frozen abstraction. He believes that it isnt SCOTUS's job to bring freedom to the country, but to read the Constitution as it was written. If you think that judges should base their decisions purely upon a desire to increase freedom, then you dont need to have a Constitution in the first place - you only need a one line memo telling SCOTUS to make rulings based on 'human freedom'.

Obviously I disagree with you on this point, but perhaps we'll come back to it later.

But I do want to mention one thing here that I think (though perhaps I'm misreading) needs to be cleared up. The Constitution does not grant rights to the citizens nor is it a restraint on the citizens - it is a restraint on the government. The purpose of a Supreme Court is not to read the Constitution and confer rights upon the citizens, it is to protect the citizens by striking down laws which contradict the principle of individual rights.

So when you ask if I think Judges should base their decisions "purely upon a desire to increase freedom", my response would be yes, as long as we're clear that we are talking about the freedom which corresponds to individual rights, and not the anarchic, whim-worshipping type of freedom typical of libertarians. So when the Supreme Court hears a case brought against a man for having sex with another man (or against a woman for receiving medical treatment from a doctor), the Supreme Court's job is not to say, "Hmm...What was the meaning of freedom at the time of the founding?" It's job is to say, what does the principle of individual rights mean here? Is the law being used to prosecute these individuals consistent with individual rights, or not? And if it isn't consistent with individual rights, it is incumbent upon the court to strike that law down, as was done in Roe v. Wade and Lawrence v. Texas.

That's incorrect. Scalia has stated that he doesnt believe Judges should try to engage in mindreading. Its not a case of what the writers 'meant', but how the written words would have been interpreted by a reasonable speaker of the language at the time it was written.

I didn't mean to imply that he thought that. However, my criticism still applies. What the founders (or a reasonable man at the time) thought about freedom may be of value in any given legal or constitutional question, but they are not paramount. Again, the ultimate question (and test) is: is this law X consistent with individual rights, or not.

But as Scalia points out, the Amendment process exists for precisely this reason. Roe vs Wade is a good example - the Constitutional 'right' to have an abortion was obviously pulled out of thin air, but this doesnt mean that abortion should have remained a state-level issue - a new Amendment would have been the correct way to give people freedom while also respecting the objectivity of law. I live in Britain, and our legal system seems to give judges the ability to make up the law as they go along. If you want to have a proper seperation of power between the Executive and Legislative branches, then you need to limit the power of judges to what written law actually says, rather than what they/you want it to say.

I have always disliked the idea that Roe v. Wade "gave women the right to have an abortion". Let's be very clear here - Roe v. Wade (in spite of its odious reasoning) didn't give women any rights - it ruled that the government had no authority to initiate force against doctors who contracted with women to perform a medical operation. It isn't a woman's right to an abortion that was pulled out of thin air, but the idea that the government has authority to interfere with abortions. I think this really speaks to a wider issue here. Just as the presumption of innocence is given to each man in a trial, the presumption of liberty should be given to each individual. In a dictatorship, the onus is on the individual to justify his actions (if he can defend himself at all). In a free country, it is the government which must always justify it's actions.

As for separation of powers, it is the function of the Supreme Court (as I wrote above) to act as a check against the legislative and executive brances of government, by striking down unconstitutional laws, i.e., laws which violate individual rights.

 

Scalia is correct here - the Constitution doesnt mention sexual freedom. Did the founders think the right to liberty meant that slavery should be outlawed? If so, whats the point of the 13th amendment?

But don't you see that this is the whole problem here? What the founders thought (or Scalia thinks) is immaterial. The fact that anal sex isn't mentioned in the Constitution, and that it doesn't violate individual rights means that the government has no business or authority to regulate it. Again, the Constitution limits the government, not the individual.

I think thats a really bad amendment and dont think it should have been included. The problem is that it could be interpreted to mean almost anything - is there a 'right to healthcare' that exists though wasnt enumerated in the Constitution? What about a right to education? The Constitution gives no definition of what rights are, so if you want the 9th Amendment to be invoked to justify the creation of non-written rights you believe should exist, you can hardly complain if others use it to justify non-written rights you believe shouldnt exist.

I couldn't disagree with you more, but it's late (2:09am in Sacramento) and I have to be at work at 7:00am :).

Share this post


Link to post
Share on other sites

I see different viewpoints expressed by Free Capitalist and The Gerneral. I am not a legal scholar but from what I've read, I agree with The General's arguments. Why should a Constitutional amendment be neccessary for abortion when there is the 9th Amendment? If Free Capitalist and Scalia are right, then a new amendment would be needed for everything the Framers didn't specifically mention. But they told us that this was not the case by including the 9th. I think that even though the Constitution has a few flaws and could be more tightly written, if the philosophic climate of the nation was one in which reason and rights were embraced, interpreting the Constitution would not be the major issue it is today.

Share this post


Link to post
Share on other sites

I agree with what The General has said in this thread. Well spoken!

The ninth amendment is an absolutely vital part of the Constitution. It makes clear that the whole document (and the Bill of Rights in particular) is not to be construed as an exhaustive list of rights that people have. Nor is it a document that grants rights.

Supreme Court justices such as Scalia are today a great threat to our rights. If the court comes to have a majority that argees with him, the ninth amendment will be read out of existence and the court will be nothing but a rubber-stamp for the legislature. Here's what will happen: The legislature will pass a law concerning some subject that is not specifically mentioned in the Constitution. And these men will then say, in effect "I don't see anything about this subject in the Constitution, so whatever the government wants to do is OK." The only rights we'll have left will be a very narrow interpretation of those that are specifically mentioned in the Constitution. (In their support of "state rights", they'll also end up reading the 14th amendment out of existence.)

Actually, this subject has already been discussed some in this forum, under HUMANITIES > LAW. There are quite a few postings there that take both sides. Rather than me repeating what I said there, here's a "snapback" to it.

The threat of a conservative Supreme Court is a very serious one today.

Share this post


Link to post
Share on other sites
Why should a Constitutional amendment be neccessary for abortion when there is the 9th Amendment? If Free Capitalist and Scalia are right, then a new amendment would be needed for everything the Framers didn't specifically mention.
Here is a puzzle, which maybe you or someone can explain for me. The takings clause says "nor shall private property be taken for public use, without just compensation". Does this, then, authorize confiscation of property for public use? It certainly does not directly do so -- for an example of direct authorization, see Article 1 Section 8 of the Constitution which says that "The Congress shall have Power To..." followed by a lot of things, such as collecting taxes, providing for the general welfare, and regulating commerce between states, and in general "to make all Laws which shall be necessary and proper" to implement the powers of Congress. If we suppose that the government has no right to act except in ways that are specifically and explicitly allowed in the Constitution, then we have to conclude that there is no right of eminent domain (of course there isn't, I can hear you screaming). The puzzle is, why does the Takings Clause restrict a right that is not explicitly granted to the government in the first place. It would seem entirely redundant to include a restricted protection of citizen rights, when (by assumption) the state doesn't have any right to take property in the first place. The obvious conclusion is that the explicit enumeration of powers of government was also not taken to disparage the implicit power to do various unspecified things deemed necessary to e.g. regulate commerce or provide for general welfare.

Now, the Constitution also does not explicitly authorize Congress to outlaw murder or theft and, interestingly, these are not (generally) federal crimes. This is consistent with the 10th amendment, of course. The federal government does not have the right (under the Constitution) to outlaw murder, "the people" retain that right, which explains why in all 50 states there is a law against murder. This would be an example of a right reserved to the states or people -- and exercised universally -- namely the right to pass a law against murder (or theft). Now let's move on to abortion. The Constitution does not speak directly of a congressional power to outlaw or authorize abortion, meaning that this right is left to the people. In a number of states, the people have enacted laws that prohibit abortions, so in those states, abortions would be illegal (though not in states like Washington, which legalized abortion, pre-Roe).

The reason why a Constitutional amendment would be necessary at the federal level, if you want to allow individuals to have abortions freely in the US, without a Roe-like ruling, is that such an allowance abrogates the right of the people to pass legislation regulating individual conduct, at the state level. So you are absolutely right that "a new amendment would be needed for everything the Framers didn't specifically mention". If states were bound by the same strictures are would be imposed on the federal govenment ("all federal powers must be explictly mentioned in the Constitution"), states could not outlaw murder. That would be an absurd result (and conmtra the 10th Amendment), and I don't think that anyone seriously believes that The Framers wanted to hamstring local government in this way. The 9th amendment therefore provides no protection whatsoever against anti-abortion law, or anti-gay laws, or what have you, as long as they are not federal laws.

The problem, in my opinion, lies in the fact that relatively little in the Constitution protects the right of the individual, and the 9th amendment in particular does virtually nothing to protect the rights of the individual. States must have the power to control individual behavior in ways not explicitly allowed in the Constitution (cf. all criminal and contractual matters), as recognised by the 10th amendment. That power of "the people", in turn, turns into a right to prohibit abortions, or gay sex, or whatever you feel like outlawing.

Share this post


Link to post
Share on other sites
The problem, in my opinion, lies in the fact that relatively little in the Constitution protects the right of the individual, and the 9th amendment in particular does virtually nothing to protect the rights of the individual.

The implication of your well reasoned post is that at some point a new Constitution will have to be written that is far more explicit in its definition of rights and the governnment's role in protecting those rights. Our Constitution represents a great achievement by men that lived over two hundred years ago. They did the best they could with the philosophy they had. But, as we know, the philosophy they had was very flawed. Over time those flaws have spread like the proverbial cracks in the pavement where now they threaten to undermine the whole judicial system.

At his Morality of War speech, Yaron Brook in the Q&A said that as great as the Founding Fathers were, ultimately they failed. Their philosophic flaws would eventually destroy all the good they created. That is unless the philosophical antidote could be spread in time. At the time I thought it was too negative, but I'm beginning to agree with it. I think the Constitution we were bequeathed has too many holes to be remedied. There is too much room for interpretation with the wording. Posts like this one make me feel that it can't be saved.

Share this post


Link to post
Share on other sites
...

The reason why a Constitutional amendment would be necessary at the federal level, if you want to allow individuals to have abortions freely in the US, without a Roe-like ruling, is that such an allowance abrogates the right of the people to pass legislation regulating individual conduct, at the state level. So you are absolutely right that "a new amendment would be needed for everything the Framers didn't specifically mention". If states were bound by the same strictures are would be imposed on the federal govenment ("all federal powers must be explictly mentioned in the Constitution"), states could not outlaw murder. That would be an absurd result (and conmtra the 10th Amendment), and I don't think that anyone seriously believes that The Framers wanted to hamstring local government in this way. The 9th amendment therefore provides no protection whatsoever against anti-abortion law, or anti-gay laws, or what have you, as long as they are not federal laws.

The problem, in my opinion, lies in the fact that relatively little in the Constitution protects the right of the individual, and the 9th amendment in particular does virtually nothing to protect the rights of the individual. States must have the power to control individual behavior in ways not explicitly allowed in the Constitution (cf. all criminal and contractual matters), as recognised by the 10th amendment. That power of "the people", in turn, turns into a right to prohibit abortions, or gay sex, or whatever you feel like outlawing.

I disagree. The 9th amendment, properly interpreted, prevents laws against abortion and consensual sex among adults, but it does not prevent laws against murder.

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." [Emphasis added.]

The 9th amendment only deals with rights. It is not a prohibition against government control of just any and all individual behavior, it is only a prohibition of the government violating rights.

To restate this: the 9th amendment does not prohibit the government from taking any actions except for those which would violate rights.

So we have to ask: is there a right to murder? Is there a right to two adult men practicing homosexual sex? Is there a right to seek an abortion?

The Constitution does not answer these questions. But because of the 9th amendment, the Constitution presupposes that there are answers to these questions. For the phrase "rights retained by the people" to mean anything, there must inded be such rights. And there must be a way to tell what they are.

The only way to tell what they are is to have a theory of man's rights. By knowing what sort of being man is, we can tell that he does not have a right to commit murder (or to receive free health care at government expense), but that he does have a right to engage in consensual sex with other adults, and that a woman does have a right to seek an abortion.

But this is not a weakness of the 9th amendment. Indeed, the very existence of the whole constitution presupposes that man has rights, and thus, that there must be a theory of man's rights whereby we can tell what these rights are.

It would be improper for the Constitution to enumerate all of our rights - the document would be huge and unreadable - nobody would be able to retain the whole thing in his mind. That isn't the function of a constitution. It is there to spell out what the government is for and what it can do. (In fact, I understand that some of the founders were against the very idea of a Bill of Rights, since they thought its existence would later be used as an argument that those were the only rights people had. How insightful they were!)

Is the 9th amendment then a loophole that somehow allows the government to pass any law it wants to? For instance, a right to medical care? No, for two reasons. First, the 9th amendment is a prohibition on what government can do, not an excuse for more laws. The Supreme Court can use the 9th to invalidate an unconstitutional law, but it can't use it to require that the legislature pass a particular law. Second, as I've said, the 9th amendment rests on a proper theory of man's rights, and such a supposed law would be completely outside of such a theory.

(My first point in the last paragraph is worth repeating: the 9th amendment, and indeed the whole Bill of Rights can only be used by the Supreme Court to invalidate a law that the legislature has passed. It cannot be used by the Supreme Court to force the legislature to pass a particular law. Laws are made by the legislature; all the Supreme Court can do, in this capacity of judicial review, is strike down a law the legislature has passed.)

Share this post


Link to post
Share on other sites
If states were bound by the same strictures are would be imposed on the federal govenment ("all federal powers must be explictly mentioned in the Constitution"), states could not outlaw murder.
Why not? Constitutions, even State ones, can be amended can they not? As long as a Constitution specifies that everything not explicitly mentioned in it is left, by default to the people, and also that it is legal to amend the Constitution in accordance with proper procedures, then don't you have everything you need there?

As to the other argument (raised by others, not Dave), that the "originalist" view of the Constitution implies a positive, rather than a negative, view of rights, I disagree. Although Scalia might argue about abortion as a positive right that the government bestows or does not bestow on the people, that stems from his faulty conception of rights, and someone like me who does not agree with him in that view can still share his "originalist" view of the Constitution. The only thing Scalia's argument comes down to, is that we should consider the context of the 18th century words and meanings when reading the Constitution.

An absurd but appropriate example can be made with the following text from the First Amendment:

Congress shall make no law respecting an establishment of religion
Say in 200 years, the meaning of words will change as it often does throughout history, and "shall make no law" will be 'contracted' to "shall make law", viewing "no" as grammatically redundant in the English grammar of that period in time. For a non-originalist, therefore, the original meaning of the Amendment has been completely reversed to mean the opposite of what it originally meant, whereas for an Originalist, he will look back in time (not even back to the 20th century, but all the way to the 18th) to discover what the clause originally meant conceptually. That is the whole of Scalia's argument, to treat the Constitution as a fixed document, whose meaning cannot be expanded or modified unless through explicit and official amendments. This does not, in any way, intersect with the negative rights vs. positive rights issue (and also why I am capable of supporting Scalia on this).

So in other words, I am not advocating that all powers not explicitly allowed to the people are reserved for the government, nor am I saying that we we cannot draw upon issues that are implied in the Constitution, rather than explicitly stated in it. But if I am to understand what the Constitution implies, what I'm saying is that I should read the implications as they would be implied by the Founding Fathers, and not anyone else, at any later point in time. I would not, for example, read Ayn Rand and, seeing some things that the Founders might have done better, try to covertly modify the meaning of the Constitution to be closer to what I want it to be, rather than what it is.

That is why I said that Scalia's correctness on this issue is epistemological.

--

Anyhow, this thread is very similar to the following thread I started some time before:

http://forums.4aynrandfans.com/index.php?showtopic=649

Unless anyone has any reason to disagree, I would like to merge these two threads into one, as they are really about the same thing (the title I will keep will probably be this thread's, and not that of the other one).

Share this post


Link to post
Share on other sites
The implication of your well reasoned post is that at some point a new Constitution will have to be written that is far more explicit in its definition of rights and the governnment's role in protecting those rights. Our Constitution represents a great achievement by men that lived over two hundred years ago. They did the best they could with the philosophy they had. But, as we know, the philosophy they had was very flawed. Over time those flaws have spread like the proverbial cracks in the pavement where now they threaten to undermine the whole judicial system.
Exactly right. Nothing like this kind of government existed before, so of course they did not have the experiential basis for doing better. I think that a few carefully-crafted revisions could do wonders for making the existing Constitution a vastly better document -- such as an explicit statement of the exclusive purpose of government, a statement of individual rights, and especially some explicit metarules of interpretation. Above all, the concept of "lenity" (which favors individual rights) should be elevated to a higher position, and "deference" (which favors arbitrary government power) should be minimized. But given how much of the Constitution is about how to separate and wield government power, this would not be a small revision.

Share this post


Link to post
Share on other sites
Constitutions, even State ones, can be amended can they not? As long as a Constitution specifies that everything not explicitly mentioned in it is left, by default to the people, and also that it is legal to amend the Constitution in accordance with proper procedures, then don't you have everything you need there?
The 9th amendment is one-third useful here -- what the heck does it mean? In fact it just amounts to denying the legal principle expressio unius -- we cannot tell whether non-protected actions are to be considered rights. It only says "Just because we don't mention a right to sodomy or abortion, that doesn't mean that you don't have such a right -- but it also doesn't mean you do. We're not saying, one way or the other".

No state can have an amendment that cancels the First Amendment, or the Second (etc). Explicit recognition of the rights of an individual ise taken to be a legal absolute -- no state, county, city or neighborhood government can suspend the right to free speech, which is guaranteed in the Constitution. In contrast, non-disparaged rights, the ones that are in non-expressio limbo which are not explicitly guaranteed, can in fact be cancelled by state amendment (at the state level). If, following the expansive interpretation of the 9th amendment, you deny that there is a distinction between guaranteed rights and non-denied rights (like abortion, gay sex, making a huge profit in business), then a state cannot act to outlaw murder, since the US Constitution does not explicitly allow such a law which restricts individuals (since states, by hypothesis, are not allowed powers to restrict individuals in ways not explicitly mentioned in the US Constitution). The power to amend at the state level would be irrelevant -- however, a federal amendment that allows laws against murder (at the federal level, and by inheritance of government power, at the state level) would be possible. But quite a nuisance. My main point here is that clearly it was not the intent of The Framers that governments may only do those things explicitly listed in the Constitution, pace the 9th amendment. That was a mistake on their part, but not one trivially forseeable.

Say in 200 years, the meaning of words will change as it often does throughout history, and "shall make no law" will be 'contracted' to "shall make law", viewing "no" as grammatically redundant in the English grammar of that period in time. For a non-originalist, therefore, the original meaning of the Amendment has been completely reversed to mean the opposite of what it originally meant, whereas for an Originalist, he will look back in time (not even back to the 20th century, but all the way to the 18th) to discover what the clause originally meant conceptually.
Theoretically speaking, I would agree that a law (or any other statement) should be understood in terms of the units identified by the writers of the law -- and not the units abstractly associated with the words, dropping the context "by whom" (the latter being the "magical potency of words" theory of law). The epistemological point that Scalia often misses is that later interpreters of those words (judges, for example) do not have access to the identifications made by the individuals who wrote and agreed to these statements. As a case in point, does the 2nd amendment protect the rights of a citizen to own a revolver or a rifle? These objects did not exist when the 2nd amendment was written -- is the meaning of "arms" specifically "muskets and breach-loading single shot pistols?" Or did it mean "any weapons". Even if The Framers did not know of revolver and rifles, they could surely conceive of technological development in weaponry, so could have been referring to that when they said "arms".

So yes, we can treat the Constitution as a "fixed document", but we still don't know what units The Framers were referring to -- it is quite unlikely that they were really referring to the same units. When two concepts are referenced by one word, you have ambiguity, and therefore no well-defined law. The proper disposition of a badly written law is to suspend it and replace it with a well-formed law that correctly identifies the actions to be prohibited -- i.e. apply the rule of lenity. Scalia is loathe to do so, which is his main epistemological failure. (His moral failings, I won't even touch).

Share this post


Link to post
Share on other sites

Justice Scalia deserves no praise.

It is not enough to read Scalia’s speeches explaining his supposed judicial philosophy; you also have to look at whether or not he practices what he preaches. He does not. He clearly acts according to a religious agenda.

He defends commercial advertisements and campaign finance as protected by the first amendment’s protection of free speech. Yet, these are surely not explicitly included in the text of the first amendment. (See Lorillard v. Reilly regarding commercial speech and the dissenting opinions in McConnell v. Federal Election Commission regarding campaign finance). Nor does Scalia argue that the meaning of free speech at the time the Constitution was adopted would have included billboards or campaign contributions. And yet he has no problem expanding the first amendment to include them. (And I do, of course, agree that both issues are protected by our Constitution).

However, when a case involves something like the Ten Commandments, anti-sodomy laws, or abortion, Scalia’s religiosity shines through, and he maintains that the Constitution has nothing to say on those issues and should allow the states and/or Congress to decide those issues. This should be no surprise coming from a man who has proclaimed that in regards to the Ten Commandments display: "It's a symbol of the fact that government comes - derives its authority from God. And that is, it seems to me, an appropriate symbol to be on state grounds." (quote taken from article here) Scalia is explicit that the law gets its authority from God. If you would like to read Scalia’s own words see his article entitled “God’s Justice and Ours” here.

And yet even if Scalia were consistent, his is not a proper method to decide cases by. Jay P and The General have both written excellent posts explaining why. I took a class on First Amendment Law a few years ago and had the opportunity to read a number of judicial decisions and to research Scalia's judicial philosophy. Originally, I thought he had an admirable approach to the Constitution, but that he simply wasn't consistent. Now, it is clear to me that his method is bad, too, for the reasons that Jay P and The General have argued in this thread.

Finally, I want to re-emphasize Jay P's point in his last post about the 9th amendment:

First, the 9th amendment is a prohibition on what government can do, not an excuse for more laws.  The Supreme Court can use the 9th to invalidate an unconstitutional law, but it can't use it to require that the legislature pass a particular law.  Second, as I've said, the 9th amendment rests on a proper theory of man's rights, and such a supposed law would be completely outside of such a theory.

Exactly! Very well said!

Share this post


Link to post
Share on other sites
The 9th amendment, properly interpreted, prevents laws against abortion and consensual sex among adults, but it does not prevent laws against murder.
Right, if you add something to the Constitution, which does not currently exist, to distinguish murder and abortion. What is missing is a characterization of those non-disparaged rights. Just reading the Constitution literally -- as Scalia claims to do -- provide no hint what these rights are. That's a very significant omission -- it allows the people the "right" to prohibit abortion, or the "right" to a chicken in every pot. You have to go outside the Constitution to determine what rights are (or amend it).
It would be improper for the Constitution to enumerate all of our rights - the document would be huge and unreadable - nobody would be able to retain the whole thing in his mind.
Which is another fact that makes the 9th amendment irrelevant. Explicit enumeration of rights is not what's necessary, explicit characterization is, and even that is missing from the Constitution. It's nearly trivial to provide such a characterisation: here is a statement of individual rights. "The individual has the freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. One mans rights impose no obligations on other except of the negative obligation, to abstain from violating the rights of others" (paraphrasing VOS p. 110). You do not need to explicitly say "you have the right to buy a car, if you can afford one; you have the right to sell your house, if you can find a buyer...".

Take that, plus the statement of the function of goverment: "the function of government is to protect the rights of individuals" and "the government may not act except to protect the rights of individuals", then you have 50% of what is needed in a proper legal framework. The only rules of legal interpretation need to be "Laws must be interpreted in a manner that protects the rights of individuals" and "Any law which is found to violate the rights of individuals is rendered null and void".

First, the 9th amendment is a prohibition on what government can do, not an excuse for more laws. The Supreme Court can use the 9th to invalidate an unconstitutional law, but it can't use it to require that the legislature pass a particular law.
But it allows the people to do things such as pass laws against abortion.
Second, as I've said, the 9th amendment rests on a proper theory of man's rights, and such a supposed law would be completely outside of such a theory.
If such a theory were part of the Constitution, then I agree: the 9th amendment would be harmless redundancy. The 9th amendment adds nothing at all, except to thwart an exclusio argument against the recognition of a concrete right.

Share this post


Link to post
Share on other sites
...Explicit enumeration of rights is not what's necessary, explicit characterization is, and even that is missing from the Constitution....

At first, I thought I agreed that adding a characterization of rights to the constitution would be a good thing, but I'm hesitant because I think that any characterization would still be open to interpretation, just as today, the question of what rights are protected by the 9th amendment isn't answered explicitly by the Constitution.

I think that even with such a characterization, the Constitution would still presuppose the existence of a theory of Man's Rights. People would still be arguing over what exactly were the rights that people had. (For instance, there would probably still be religious conservatives insisting that fetuses were actual people and had rights. Does that mean we would need to put into the Constitution a definition of a person?)

So I continue to think that when I look at the 9th amendment, it means just what it says: that there really are "other" rights, that they are "retained by the people" and that they are not to be "disparaged". I take the latter to mean that the 9th amendment rights do not have any lesser status when compared to explicitly enumerated ones. (For instance, the right to engage in consensual sex with other adults is not a lesser right than the freedom of speech, although it is not as fundamentally significant to the maintenance of a free society. I.e., once free speech is gone, it's hard to ever get it or any other rights back, since there's no longer any way to try to persuade people of one's position.)

I continue to think that the 9th amendment is enough to invalidate federal laws that violate rights.

The 14th amendment is also needed to make clear that state governments cannot violate rights either; in other words, the Bill of Rights restricts the actions of the state governments too. Specifically, this sentence:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Share this post


Link to post
Share on other sites
At first, I thought I agreed that adding a characterization of rights to the constitution would be a good thing, but I'm hesitant because I think that any characterization would still be open to interpretation, just as today, the question of what rights are protected by the 9th amendment isn't answered explicitly by the Constitution.

There was significant debate (unfortunately I forget who was on which side) between the founding fathers on the very issue of whether a Bill of Rights would be a good idea, exactly because it was feared (by those opposing it) that such an enumeration would be seen as a limited list of rights, that could be implied as excluding countless specific rights that were not so enumerated - which, as I understand it, was why the 9th amendment is there (to repeat: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

As Ayn Rand noted (and I paraphrase here, any misstatement is my own), the purpose of the Constitution is not to "reign in" the actions of a country's citizens, its real purpose is to try to keep the force-wielding government under rational control and to set definite limits on the scope of its actions (namely, that its sole essential purpose is to protect the rights of Americans, and that the government has no sanction for its existence other than that purpose.)

Share this post


Link to post
Share on other sites
At first, I thought I agreed that adding a characterization of rights to the constitution would be a good thing, but I'm hesitant because I think that any characterization would still be open to interpretation, just as today, the question of what rights are protected by the 9th amendment isn't answered explicitly by the Constitution.
It's true: any general statement which goes beyond stating "this is concretely what we have have observed" is open to interpretation -- that's in the nature of law, to say that a rule separates actions into the proper and the improper, and that you can combine the statement of the law and the actual conditions and conclude by analogy -- interpret -- whether the action in question is proper or improper. Interpretation is inevitable: the question is whether it's possible to say anything in a foundational document that would help to avoid wrong interpretations. I'm saying that you have a better chance of correct interpretation if a foundational legal document starts by laying out its fundamental principles from the beginning: "Individuals have the freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. One mans rights impose no obligations on other except of the negative obligation, to abstain from violating the rights of others. The function of government is to protect the rights of individuals, and the government may not act except to protect the rights of individuals. All laws must be interpreted in a manner that protects the rights of individuals, and any law which is found to violate the rights of individuals is rendered null and void".
I think that even with such a characterization, the Constitution would still presuppose the existence of a theory of Man's Rights.  People would still be arguing over what exactly were the rights that people had.  (For instance, there would probably still be religious conservatives insisting that fetuses were actual people and had rights.  Does that mean we would need to put into the Constitution a definition of a person?)
Well, in fact I don't think that's a bad idea given the incoherent treatment of "person" under the law (esp. the fact that corporations are people for certain purposes but not others).
I continue to think that the 9th amendment is enough to invalidate federal laws that violate rights.

The 14th amendment is also needed to make clear that state governments cannot violate rights either; in other words, the Bill of Rights restricts the actions of the state governments too.

Sure, if we presume a particular concept of rights that is completely independent of the Constitution, which is something that crank Scalia won't assume. My problem is with people who think that the Constitution is in itelf sufficient. Now, furthermore, once you have that theory of rights, a lot of the Constitution is superfluous, such as the Bill of Rights and most other Amendments (and a lot of the Constitution such as virtually all of Art. 1 Sect. 8-10). The problem is that there exists no definitive document -- analogous to the Constitution -- which a judge can appeal to to determine who has rights and what they are. It isn't important that this theory of rights be physically part of the Consitution: it can be a separate document. What is important, from the perspective of law, is that there be such a document, and that it be taken to be the highest principle of law, superceding niceties of how representatives are elected.

Share this post


Link to post
Share on other sites
Sign in to follow this  
Followers 0