What is the Framer’s Intent?: Why a Moral Model is Required for Appropriate Interpretation of the Constitution
In his book, A Matter of Interpretation: Federal Courts and the Law, in his chapter “Common-Law Courts in a Civil-Law System,” Antonin Scalia debates the fundamental question: how should judges interpret the Constitution? Scalia believes that the judge’s objective in interpreting a statute is to give effect to “the intent of the legislature.” [1] He contends that if judges do not interpret the legislature based on the original intent, then there are dangers involved that can pose a threat to the fairness of the democratic legal system. Scalia believes that if judges do not apply the Constitution by the original meaning, then it is “incompatible with democratic government… to have the meaning of law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.” [2] Furthermore, Scalia claims that “unexpressed intent is tyrannical” and likens this to Nero posting his edicts high on columns so that the general public cannot read them. He also contends that if the legislature is applied, based on moral principles, then judges will have free rein to interpret the law according to their own values and interests, rather than in its original intent. While Scalia makes some strong arguments for constitutional originalism, I argue that a moral interpretation would be a better judgment of the Constitution than Scalia’s belief in textualism.
In response to this, Scalia would likely argue that textualism gives fixed guidance and puts constraints on constitutional interpretation. However, I contend that through textualism, the judges still have the power to interpret text and therefore pose the same threat. Dworkin responds to Scalia’s argument about the guidance of textualism by speaking on the Fourteenth Amendment. Dworkin cites that, while the Fourteenth Amendment guarantees equal protection under the laws, its intent was not to forbid racial segregation in public schools. [3] Therefore, an originalist like Scalia would have to interpret the Fourteenth Amendment based on the original intent, which was to continue racial segregation. A moral interpretation of the Constitution would value the social evolution that the US has undergone and apply the broad statement of guaranteeing equal protection under the laws in a more appropriate manner. This would mean that the intent of segregation would have to be considered by true originalists, who consider the attitudes of the legislators of 1868, even though the Civil Rights Act suspended segregation in 1964. Because textualists must and do interpret the Fourteenth Amendment based on current moral standards, this indicates that originalists use their power and judgment to interpret laws as much as those who use moral principles.
Another example that Dworkin uses in the debate about the power of interpretation is the Eighth Amendment, Cruel and Unusual Punishment. Dworkin argues that there are two different ways that originalists could interpret the intent of the Framers. The first way is that only cruel and unusual punishments at the date of enactment would be prohibited. [4] This would mean that punishments like hanging, which were still common during the early part of the nineteenth century, could be interpreted as enforceable today. The second reading would suppose that they “intended to lay down an abstract principle forbidding whatever punishments are in fact cruel and unusual.” [5] This illustrates how the originalists must still use their power to decide between two different possible interpretations. Furthermore, if the second translation is more accurate, then the question remains open for even more debate due to its abstract nature.
My second contention discusses Scalia’s argument that the range of disagreement amongst textualists, over how to interpret the Constitution, is a narrower disagreement regarding what counts as the moral truth. Scalia writes that he agrees with Justice Jackson’s statement, “we do not inquire what the legislature meant; we ask only what the statute means.” [6] However, he neglects to address that the disagreement amongst textualists is still there and harder to interpret than he argues. Scalia admits that there is still reasonable disagreement about the original meaning of the text; however, he claims that it pales compared to the controversy on how to evolve the Constitution to the moral standards of today. When applied to a case, as Dworkin cites, it exhibits how original intent is not as straightforward as Scalia believes it to be. Scalia believes that when looking at the legislature’s meaning, rather than morphing it to current circumstances, they will be able to understand the Constitution better. He writes that the moral standard will be too contentious. For example, he asks what moral standard we are to follow when interpreting. This can then be applied to textualists by asking how we choose between textualists’ interpretations. How should judges interpret original intent? Which historians and documents do we look at? Do we judge the Eighth Amendment based on the punishments that were used at the time of enactment? Or do we read it more abstractly (which opens it to more debate)?
I argue that not only is the disagreement amongst textualists significant, but the outcome is worse. I believe that although judges guided by true moral principles must use their power to interpret the constitution and face disagreement on moral principles, just like textualists, the outcome of these debates and interpretations is better than that of textualists. Citing the examples used before, the Eighth and Fourteenth Amendments, both outcomes guided by moral principles, offer a more morally defensible reading of the Constitution than that of the textualists. The Eighth Amendment, interpreted by textualists, has the danger of reverting to historical uses of punishment that have been outlawed since. This is due to the evolution of morality applied to modern circumstances. Furthermore, moral principles in this debate can often offer a clearer answer than the textualist interpretation. For example, there was no clear mention in the Constitution that the Eighth Amendment must be judged based on “punishments widely regarded as cruel and unusual at the date of this enactment.” [7] The text is not as straightforward as Scalia argues; there are ambiguous and old words that must be applied to every new context that wasn’t in existence or relevant at the time these amendments were written. Evolving the Constitution allowed same-sex marriage, evolving the Fourteenth Amendment, granting women fundamental rights over their bodies, and many more positive developments. Our moral evolution as a society is not just important, it is imperative, while reading these guiding laws in order to apply them to modern cases.
Possible counterarguments to my contentions could be that a morphing constitution would mean that it would evolve in a way that the majority wishes. This would cause an issue if there were a barbarous majority that does not wish to protect the Constitution. This concern arises because Scalia believes that there is no guiding moral truth and therefore, judges would be swayed by the wishes of the majority. For example, if there were a case where a pedophile was put on trial and the majority wanted to torture them to death for their horrific crimes against a child, then this pedophile would not be appropriately protected by the Eighth Amendment. This is a legitimate theoretical concern; however, with a barbarous majority, textualists would still be unable to abide by their interpretation of the Constitution. For example, the Second Amendment, the right to bear arms, is at odds with the original intent. If applied by textualists, it would mean that only militias and national guards would be permitted to bear arms in the context of the time that it was written. However, due to the strong support by the majority to bear arms, it has not affected the way that textualists interpret the Constitution. My response to the counterargument would be that with a majority sentiment, textualists would not guarantee the protection of the Constitution. Through moral interpretation or originalist interpretation, the Constitution would be overridden.
In conclusion, I believe that textualism is an inappropriate judicial interpretation tool. A more legitimate judgment of the constitution would be to use moral truths to guide the constitution in applying to modern cases. The constitution was written in a broad language and was intended to last for centuries in order to protect the rights of the people. If it is interpreted in its original manner, then it would not reflect the current moral standards. We would revert to the prevailing parameters of the era in which these amendments were written. Furthermore, although moral and evolving constitutional readings run the risk of disproportionately distributed power, polarized disagreement, and tyranny of the majority, these arguments can also be applied to originalism. However, the tie-breaker between the two is that the moral interpretation offers a better understanding of the constitution and can be applied in a more pertinent manner.
Bibliography
[1] Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997, 187.
[2] Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997, 188.
[3] Dworkin, Ronald. “Comment.” In Philosophy of Law, edited by Joel Feinberg and Jules Coleman, 196-203. Belmont, CA: Wadsworth, 2003, 198.
[4] Ibid.
[5] Ibid.
[6] Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997, 190.
[7] Dworkin, Ronald. “Comment.” In Philosophy of Law, edited by Joel Feinberg and Jules Coleman, 196-203. Belmont, CA: Wadsworth, 2003, 198.