Justice Scalia: Populist

Justice Scalia (HLS 1960) is speaking at the inaugural Herbert W. Vaughan Lecture today at Harvard Law School. It’s packed – I arrived at 4pm for the 4:30 talk and joined the end of a long line…. then was immediately told the auditorium was full and was relegated to an overflow room with video. I’m lucky to have been early enough to even see it live.

The topic of the talk hasn’t been announced and we’re all waiting with palpable anticipation in the air. The din is deafening.

Scalia takes the podium. The title of his talk is “Methodology of Originalism.”

His subject is the intersection of constitutional law and history. He notes that the orthodox view of constitutional interpretation, up to the time of the Warren Court, was that the constitution is no different from any other legal text. That is, it bears a static meaning that doesn’t change from generation to generation, although it gets applied to new situations. The application to pre-existing phenomena doesn’t change over time, but these applications do provide the data upon which to decide the cases on the new phenomena.

Things changed when the Warren court permitted in New York Times Co. v. Sullivan 376 U.S. 254 (1964) that good faith libel of public figures was good for democracy. Scalia says this might be so but that change should be made by statute and not by the court. He argues this is respectful of the democratic system in that the laws are reflections of people’s votes. This is the first, and perhaps the best known, of two ways Scalia comes across as populist in this talk. In a question at the end he says that the whole theory of democracy is that a justice is not supposed to be writing a constitution but just reflecting what the american people have decided. If you believe in democracy, he explains, you believe in majority rules. In liberal democracies like ours we have made exceptions and given protection to certain minorites such as religious or political minorities. But his key point is that the people made these exceptions, ie. they were adopted in a democratic fashion.

But doesn’t originalism require you to know the original meaning of a document? and isn’t history a science unto itself, and different from law? Scalia responds to this argument by saying first that history is central to the law, in the very least through the fact that the meanings of words change over time. So inquiry into the past certainly has to do with the law and vice versa. He notes that the only way to assign meaning to many of the phrases in the constitution is through historical understanding: for example “letters of mark and reprisal” and “habeas corpus” etc. Secondly, he gives a deeply non-elitist argument about the quality of expert vs nonexpert reasoning. This is the second way Scalia expresses a populist sentiment.

In District of Columbia v. Heller, 554 U.S. ___ (2008), the petitioners contended that the term “bear arms” only meant a military interpretation, although there are previous cases that show this isn’t true. But this case was about more than the historical usage of words: the 2nd Amendment didn’t say “the people shall have the right to keep and bear arms,” for example, but that “the right of the people to keep and bear arms shall not be infringed” – as if this was a pre-existing right. So Scalia argues that here there was a place for historical inquiry here that showed there was such a pre-exsiting right: in the English bill of Rights of 1689 (found by Blackstone). So now it’s hard to see the 2nd Amendment as more than the right to join a militia. Which goes with the prologue of the 2nd Amendment: the right of a well regulated militia to keep arms. This goes much further than just lexicography.

So what can be expected of judges? Scalia argues, like Churchill’s argument for democracy, that all an originalist need show is that originalism beats the alternatives. He says this isn’t hard to do since inquiry into original meaning is not as difficult as what opponents suggest. He says one place to look when the framer’s intent is not clear is to look at states’ older interpretations. And in the vast majority of cases, including the most controversial ones, the originalist interpretation is clear. His examples of cases with clear original intent are abortion, a right to engage in homosexual sodomy, or assisted suicide, or prohibition of the death penalty (the death penalty was historically the only penalty for a felony) – these rights are not found in the constitution. Determining whether there should be (and hence is, for a non-originalist judge) a right to abortion or same sex marriage or whatnot, requires moral philosophy which Scalia says is harder than historical inquiry.

He also uses as evidence for the symbiotic relationship between law and history that history departments have legal historical scholars and law schools have historical experts.

Scalia gives the case of Thompson v. Oklahoma 487 U.S. 815 (1988) as an example of a situation in which historical reasoning played little part and he uses this as a baseline to argue that the role of historical reasoning in Supreme Court opinions is increasing. The briefs in Thompson were of no help with historical questions since they did not touch on the history of the 8th Amendment, but Scalia says this isn’t surprising since the history of the clause had been written out of the argument by previous thinking. Another case, Morrison v. Olsen 487 U.S. 654 (1988), considered a challenge to the statue creating the independent counsel. Scalia thinks these questions could benefit little from historical clarification, so the briefing in Morrison focused on historical questions such as what did the term “inferior officers” mean at the time of the founding. Two briefs authored by HLS faculty (Cox, Fried) provided useful historical material, but the historical referencing was sparse and none of these briefs were written by scholars of legal history.

In contrast, in 2007 in Heller there was again little historical context but in this case many amicus briefs focused on historical arguments and material. This is a very different situation to that of 20 years ago. There were several briefs from legal historical experts and each contained detailed discussions of the historical right to bear arms in England and here at the time of the founding. Such foci were the heart of the brief, and not relegated to a footnote as it likely would have been 20 years ago, and was in Morrison. Scalia thinks this reinforces the use of the originalist approach, by showing how easy it is compared to other approaches.

Scalia eschews amicus briefs in general, especially insofar as they repeat the arguments made by the parties because of their pretense to scholarly impartiality which may convince judges to sign on to briefs that are nothing but impartial. “Disinterested scholarship and advocacy do not mix well.”

Scalia takes on a second argument made against the use of history in the courts – that the history used is “law office history.” That is, the selection of data favorable to the position being advanced without regard or concern for contradictory data or relevance. Here the charge is not incompentance but tendentiousness: advocates cannot be trusted to present an unbiased view. But of course! says Scalia, since they are advocates. But insofar as the criticism is directed at the court, it is essential that the adjudicator is impartial. “Of course a judicial opinion can give a distorted picture of historical truth, but this would be an inadequate historical opinion and not that which is expected” from the Court. Scalia admonishes that one must review the historical evidence in detail rather than raise the “know nothing” cry.

This is Scalia’s second populist argument: it is deeply non-elitist since it seems to imply that nonprofessional historians are capable of coming up with good historical understanding. It provides an example that dovetails with the notion of opening knowledge and the respect for autonomy in allow individuals to evaluate reasoning and data and come to their own conclusions (and even be right sometimes). Scalia notes that he sees the role of the Court as finding conclusions from these facts, which is different from the role of the historians.

But he feels quite differently about the conclusions of experts in other fields. For example, in overruling Dr. Miles Medical Co. v. John D. Park and Sons, 220 U.S. 373 (1911), holding that resale price maintenance isn’t a per se violation of the Sherman Act, he didn’t feel uncomfortable since this is the almost uniform view of professional economists. Scalia seems to be saying that experts are probably right more often than nonexperts, but nonexperts can also contribute. He phrases this as an expert in judicial analysis – and he says there is a difference in historical analysis vs, say, the type of engineering analysis that might be required for patent cases. He makes a distinction between types of subject which are more susceptible to successful nonexpert analysis.

Scalia then advocates for submission of analysis to public scrutiny with data open, thus allowing suspect conclusions to be challenged. The originalist will reach substantive results he doesn’t personally favor and the reasoning process should be open. Scalia notes that this is more honest that judges who reason morally, who will never disagree with their own opinions.

There was a question that got the audience laughing at the end. The questioner claims to have approached a Raytheon manufacturing facility to buy a missile or tank, since in his view the 2nd Amendment is about keeping the government scared of the people, and somehow having a gun when the government has more advanced weaponry misses the point. Scalia thinks this is outside the scope of the 2nd Amendment because “You can’t bear a tank!”

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