Tuesday, November 27, 2007

Reason for Concern?

I have found myself in agreement with Justices Scalia's and Thomas's dissenting opinions with some frequency. It distresses me a bit because they are politically aligned with an ideology I often disagree with.

My admirations for the dissents' arguments comes from the fact that Thomas & Scalia are originalists: they think the interpretation of the Constitution should be confined to the plain meaning of the language in the document and the framers' intent. It is a much easier position to argue than one that teases contemporary ideas and meanings out of the language of the document, because it has clear guidelines and set parameters. Dissenting opinions are also not as likely to be the product of bargain and compromise as are majority opinions. The writer of the dissent is not constrained by needing to temper the language to satisfy a swing vote. Similarly, it is easier to tear down an argument than it is to build one up.

I also like Scalia's dissents because they are entertaining. I spend enough time reading opinions that a Scalia zinger is a welcome occasional diversion.


Anonymous said...

Maybe you'll give us one or two specifics that you found satisfying or at least entertaining. S29

beckett said...

One recent specific comes to mind.

On the subject of whether there is a Constitutional limit to punitive damages, the Court establishes what it calls "guideposts" to determining whether punitive damages are excessive.

Scalia calles them "guideposts on a road to nowhere," or something similar.

That is what qualifies as a biting criticism in an opinion; I suppose it's because he's calling the opinion of the Court nonsensical.

I ended up having to look up the case. On the one hand that's good, because I have a final on Friday. On the other hand I thought I was done with conlaw for the day.

Now I really am.

vacuous said...

To me, a mark of an ideologue is a rigid view of the world, an inability to see other points of view, and absolute assurance of what should be done in every situation. So, I agree that Scalia is an ideologue, but I think that this "originalist" (as opposed to "original") philosophy is a symptom of that same inflexible mindset. To me, the idea that the words in the constitution have an unambiguous meaning doesn't make much sense. No language, even that of legal documents, is absolutely precise. I think you always have to consider the context and infer the intent of the writers. So much human communication works this way. Often people will utter ill-formed sentences, which, technically don't make sense, but are understood anyway. Even well-formed sentences are subject to ambiguity, and often, when interpreted literally, mean something quite different than what was intended. This is all very obvious in everyday informal speech, but I submit that it's an inherent part of communication, and not something that can be eliminated through care and precision. (It can certainly be reduced of course.) This doesn't mean that I think one can impute an arbitrary meaning to a written phrase or argument, but that one really needs to understand the cultural context in which it was written, and try one's hardest to understand the writer's intentions.

By the way, you are certainly not an ideologue since you are open to the idea that someone like Scalia could be right, or have some good points to make.

Anonymous said...

Well said, Vac!

I was listening on CSPAN to Scalia grill a lawyer arguing for habeas corpus for Gitmo prisoners. He seemed hostile to the idea and refused to "hear" the legal reasoning but seemed intent on impressing his point, perhaps in a bid to sway the other justices, that under English common law no extraterrestrial foreigner had ever been granted such a motion. But, he kept brushing off the point that the law lords made quite clear that whether a person was a crown subject or not was irrelevant.

beckett said...

As I understand Scalia's originalist or noninterpretivist outlook, he purports to bind himself to the four corners of the document, as the Framers would have understood them. As you point out, Vacuous, it is fruitless to claim that words can be interpreted out of context. His argument would be that we must look to the Framers' intent, as well as the context of the time of the writing of the document. So, as far as interpretation, what is happening now is irrelevant. Today's facts are applied to a static document.

The frustrating thing (intellectually) is seeing him abandon his interpretive theory when it is ideologically convenient to do so. For instance, in Raich v. Gonzalez, he upheld the federal government's power to forbid the growth of medicinal marijuana, though to do so, he had to make illusory distinctions between his previous contentions that government power based on the Commerce Clause should be limited.

For a real strict textualist/originalist, look to Thomas, who doggedly argues to reverse all manner of federal power expansion.

Of course, the idea that the Framers' intent should control seems a little quaint or absurd. We have a culture, technology, etc. they did not predict. On the other hand, if you get too creative in trying to match the document to the culture and its morality, you run the risk of interpretation by judicial pronouncement (the document means whatever the Court says it means).

Anon, another sign that Thomas is actually the more conservative justice (not just politically) is that he asks NO questions at oral argument. In any case, for most of the judges, most of the time, it seems like they've made up their minds by the time the oral argument rolls around.

vacuous said...

So we should stick to the intent of the founders when they wrote the constitution. But what does that mean? When circumstances arise, as they inevitably have and will, that they did not foresee, what does it mean to stick to their intent? I suggest that this is a question with no simple answer. Interpreting their intent has many different levels, and is complicated by the fact that the multiple authors actually had different intents in mind. Also, does it even make sense to talk about their intent with regard to something they would not even understand, or have limited conceptual overlap with, such as the internet? Probably to some extent, but it's a grey area, as far as I can see, and I don't think that the originalist philosophy can actually be reduced to a logically coherent system. Considering how difficult it is to amend the constitution, I think the current system works pretty well in its dynamic interpretations of the constitution. Of course the process is extremely political, which is annoying, but I don't think originalism solves that!

beckett said...

I agree. A simplistic outlook seems to solve some problems. But it requires its holder to ignore the full complexities of a situation. "It's just not in the Constitution" can be more of a cop-out than an argument. The federal gov has continually expanded its power throughout our history, but it is not nec. scalia and co.'s job to turn that tide based on their interpretive philosophy.