[softwareNerd]

Justice Scalia wants judges to use "original meaning" in deciding cases. I don't want to discuss Scalia's motivation; for all I know he simply uses the theory of legal interpretation that will allow to return to a time of greater economic freedom and less social freedom. Also, it's obvious that if the original law is bad, using that original meaning propagates that badness. With bad laws, the so called "rule of law" argument says: "mend the law, don't let judges legislate". For now, I don't want to discuss that either. I have a much simpler question; a hypothetical:

Suppose we had an excellent constitution as a starting point. Suppose it was written to give individual rights hierarchical precedence. Suppose it was explicitly stated that any doubts should be resolved by going back to the idea of individual rights. In such a situation, would "original meaning" be the correct judicial approach? It seems that it would, but it would be a very small field, all it would be is the single question: "what do rights mean?" Is this correct?

[DavidOdden]

I had a vastly more detailed answer going, but I whacked the wrong button and now it's all history. Sigh. Well, here is the sound bite version for the moment. His theory offers nothing of use, because he does not understand the nature of meaning and thus thinks of meaning as an abstract Platonic object. That means that he can say "Look at the meaning", but if you ask "What is the meaning" he has nothing to offer. An example is the term "arms" in the 2nd Amendment. Does the 2nd Amendment guarantee the right to own and bear firearms which did not exist when the 2nd Amendment was drafted? We can't tell -- Scalia doesn't have an understanding of what a meaning is, or where you would find it, so the best you can hope for is an "authoritative" declaration, usually an appeal to a particular dictionary. There is a paper out there that analyzes Scalia's use of the dictionary and shows how remarkably inconsistent it is.

An "original meaning" approach doesn't give yo anything differrent from a simple "meaning" approach, except in the odd philological case that the meaning of words has actually changed over time. I am not actually aware of any relevant examples in the US, fo example, the concept "arms" still means what it did back then, I would hold, and what has changed is the kind of arms-objects that exist.

The idea of there being "any doubt" presupposes something that is the antithesis of Scaliology, namely something other that the literal text and its self-evident meaning. Doubt has to be doubt of something -- does the text mean A or does it mean B? When a sentence is actually ambiguous (example: "in posession of jewelry or electronics worth more than $500" could mean "electronics worth more than $500 and jewelry, without consideration of value" or "electronics worth more than $500, or jewelry worth more than $500"), then the sentence itself has both meanings. A person saying such a sentence has a meaning, which has been obscured. But Scalia's story is that we should not inquire into the meaning that the utterer / lawmaker had in making this sentence. Therefore, all ambiguous texts have to be interpreted both ways. So, for Scalia's sake, we have to hope and assume that there is never any doubt.

[kingofthething]

I believe a more correct way of stating "original meaning" is "legislative intent". This typically refers to activist judges, typically dealing with abortion. The classic example is Roe v. Wade, in which the 4th Amendment was twisted to override current laws that criminalize abortions. While the outcome may be desirable, the method was not. The legislative intent of the 4th Amendment was to ensure property and privacy rights, not to declare that abortions shall be legal in all 50 states as long as it is within the first three months.

A similar problem is occuring with the 5th Amendment and emminent domain. I already have a problem with the government being able to seize property, after payment of course, for public use, but the Supreme Court recently decided that "public" can now apply to the government seizing land and then reselling it to someone else instead of building a road or school.

Scalia means that judges should objectively decide based on the law and avoid twisting the law to incorporate ideas that are not part of the goal of the law. It his belief that it is not the judicial branche's job to change laws unless they violate the Constitution.

[softwareNerd]

"Original meaning" and "original intent" are different things. Indeed, I believe Scalia has argued that intent is really tough to figure out. For instance, suppose one framer wrote something that shows his intent, but then -- as a legislative compromise with other legislators -- he agreed to frame things differently. I think Scalia argues that one cannot use his intent, but must use the actual meaning, as would have been understood at time of enactment.

I agree that in the case of eminent domain, judges have gone away from the clear meaning of the constitution. The case of abortion is a bit different, since that's an issue of constitution versus non-constitutional law. A reading of the constitution alone would have one believe that abortion ought to be legal. However, since abortion was illegal at the time, the argument goes, it must have been constitutionally okay to declare it illegal. More generally, following that argument, any laws that were ubiquitious around the time the constitution was adopted and remained on the books, unchallenged, for a few decades after such enactment, should be presumed to be constitutional. I do not agree with that presumption.

The idea that judges should follow the law is a variation of the "rule of law" argument: i.e. follow all laws, even if they violate rights (in the context of a rather free country like the U.S.). Given that the laws are so egregious in some areas, I would not support a person like Scalia. In today's context (and always) my support goes to judges who will uphold individual rights.

[KendallJ]

softwareNerd, on Dec 10 2006, 10:54 PM, said:

Suppose we had an excellent constitution as a starting point. Suppose it was written to give individual rights hierarchical precedence. Suppose it was explicitly stated that any doubts should be resolved by going back to the idea of individual rights. In such a situation, would "original meaning" be the correct judicial approach? It seems that it would, but it would be a very small field, all it would be is the single question: "what do rights mean?" Is this correct?

I would think that a better written set of documents would more explicitly explain the concept of individual rights so that "meaning" was more clear. David gets more to the heart of the matter about the failure of original meaning as a concept.

My quick reading of the concept on Wiki, would seem to indicate that such interpretation would be un-principled, i.e. it would only allow for direct literal interpretation. Whereas what we would want is a contextually relevant application of the principle of individual rights. What an "original meaning" philosophy does is put concrete situations that are new (i.e. not covered by the founders) out of reach of principles, and back up for grabs by the majority (read: abortion). The constitution doesn't specifically cover abortion as a right, and we'd probably admit that the current interpretation is poorly founded, but Scalia wants it tossed back to the mob to vote down, even though there would be ample reason to apply the principle of individual rights to it.

As an aside, I read a very good book some years ago. "Original Intent and the Framers of the Constitution" by Harry Jaffa. If I recall correctly he was a proponent of "natural rights", and took issue with both some of both the left and right's interpretation of intent. I recall it being quite a principled stand for principled interpretation (no pun intended ).

This post has been edited by KendallJ: 02 January 2007 - 06:54 PM

[softwareNerd]

KendallJ, on Jan 2 2007, 08:47 PM, said:

I would think that a better written set of documents would more explicitly explain the concept of individual rights so that "meaning" was more clear.

Indeed. Not only would the meaning of rights need to be explained, but such a document should also make clear that rights are the foundational principle of all else in the constitution. It's not just a question of all sections of the constitutional being equal, but rather of there being a conceptual hierarchy, with rights as the starting point. David actually took a shot at this in a previous thread.

[KendallJ]

woops I added to my post after you posted. Sorry.

I think David is spot on, SN. The proper heirarchy is some of what's missing in the current document and even in the Federalist as well. Maybe its just a function of the fact that the founders hadn't anticipated how Locke, and philosophy could by corrupted by someone such as Kant. They "[held those] truths to be self-evident" may have been the biggest failing of the Founders.

This post has been edited by KendallJ: 02 January 2007 - 07:34 PM

[DavidOdden]

kingofthething, on Jan 2 2007, 06:50 PM, said:

I believe a more correct way of stating "original meaning" is "legislative intent".

In my opinion, the best statement of Scalia's theory is contained in his Tanner lecture. It's hard to say which example is "classical" and which is "almost classical" -- like hizzonner, I like pointing to Church of the Holy Trinity v. United States. To get a perspective on Scalia's take on legislative intent, I'd look especially at p. 98 to the end of the first lecture, and 104-109; see p. 112 for the contrast ("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"). Since the theory known as "Original Meaning" is predominantly associated with Scalia, I defer to him on what the expression means though others may well have a different view.

Quote

Scalia means that judges should objectively decide based on the law and avoid twisting the law to incorporate ideas that are not part of the goal of the law. It his belief that it is not the judicial branche's job to change laws unless they violate the Constitution.

Actually, I am pretty sure that no judge believe they should ever change the law, or at least that they don't act on that belief. What they do is either state more explicitly what the law says (which is not the same as changing the law), or they state that the law is (constitutionally) invalid and thus no longer exists as a law. His formalist approach says more than just that judges shouldn't twist the words of the law to incorporate ideas that are not part of the goal of the law, he is saying that the notion "goal of the law" is wrong-headed and that judges should never consider the goal of a law. The only thing they should do is look at the words of the law, and if those words say "You are guilty", then the person is guilty, otherwise the person is not guilty. The idea that laws have a purpose or a goal is, for Scalia, semi-laughable.

Maybe an analogy to guns will help. A gun does not have a purpose or a goal, a gun does what it does because of its nature. It is a man-made object, so questions of goals have to be addressed to the maker -- what did he have in mind in making this gun? What was his goal? What is my goal in owning that gun? Scalia looks upon laws as mindless objects, and while it's true that some person might have had in mind one thing when they created the law, he wants judges to only consider the object created by those minds, and not the minds that did the creating.

Now as a linguist, I can appreciate Scalia's derision of language sophistry at the hands of judicial interpreters, but at the same time, in saying that Scalia has the best sensitivity to language that I've seen among judges is damning with faint praise. I will highly recommend Tara Smith's paper on Scalia's theory of meaning and the Objectivist theory of concepts, when it becomes available. Okay, no more posting for me until I do something about that.

[KendallJ]

I ran across this today on Cato's RSS feed. Originally published in the Wall Street Journal (but if you don't have online access, I can't link you to it)

Quote

The Ninth Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It means what it says, yet Mr. Whelan reads it merely as setting forth "a rule of construction governing the first eight amendments." What he seems to mean by that odd construction -- the lacunae are gaping -- is this: Since the Bill of Rights could not enumerate all of our rights (there are too many), several Framers feared that enumerating only certain rights "would imply that the national government's powers were far greater than they were." But that's a rule for construing powers, not amendments. Moreover, it conflates the two main objections those Framers raised against a bill of rights.

The first was that such a bill was unnecessary since the enumeration of limited federal powers was sufficient protection for our rights: where there is no power, by implication there is a right. The second objection, once it became clear that a bill of rights would be necessary to ensure the Constitution's ratification, led directly to the Ninth Amendment; and it did invoke a rule of construction: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. The Framers feared that their inability to enumerate all of our rights would imply that those not enumerated were not meant to be protected. Hence the Ninth Amendment -- to make it clear that unenumerated rights were to be protected too. That's a very different inference than Mr. Whelan's, but it comports far better with both text and original understanding.

Now how would an "original meaning-ist" figure out what the "other rights not enumerated" in the constitution are? Answer: he could not.

This post has been edited by KendallJ: 03 January 2007 - 07:38 PM