--A Matter of Interpretation
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
***Justice Scalia: We don't prescribe law for the future. We--we decide what the law is. I'm curious, when--when did--when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . . I'm talking about your argument. You say it is now unconstitutional.
|Justice Scalia indicates how much he loves originalism.|
Mr. Olson: Yes.
Justice Scalia: Was it always unconstitutional?
Mr. Olson: It was constitutional when we--as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that --
Justice Scalia: I see. When did that happen? When did that happen?
Mr. Olson: There's no specific date in time. This is an evolutionary cycle.
Justice Scalia: Well, how am I supposed to know how to decide a case, then--?
--Transcript of Oral Argument, Hollingsworth v. Perry
What does "equal protection of the laws" mean? How do we decide what it means? Scalia attempts to explain how federal courts should be construing texts in this book. His answer is simple: in a democracy, the law means what it says. Not what the legislature meant to say; not what the legislature intended; certainly not what the legislative history says; but, rather, the words that the legislature used and their accepted meanings at the time the legislation was passed.
His basis for this basic formula is also simple: the legislature writes the law; determining meaning based off of the words used minimizes judges' discretion to write their own law. Allowing judges to go off of legislative intent frees judges to invent or read into the law an intent. This kind of freedom is unconstrained because who is to say what the legislative intent is.
Consider the following: at the time the Fourteenth Amendment was passed, drafters of the amendment would have believed that "equal protection of the laws" did not mean "there is a right to gay marriage." So, at the time of passage, the clause had a specific reading. Why should we read the clause differently today? Under Justice Scalia's originalism, we should not. The Fourteenth Amendment meant one thing in 1868; it means the same thing today.
So, Justice Scalia's point during the Hollingsworth oral argument is that if the meaning of the equal protection clause changes over time, how does he (or any judge) know what it means at the time he has to make a decision? The point is important because, if the clause does not have a definitive meaning, should judges be the one to decide this important social issue? Justice Scalia would say no, leaving the decision to the legislature to decide. As he points out in A Matter of Interpretation, creating a constitutional right prevents flexibility in the legislature.
The book is split up into three parts: 1) Justice Scalia's essay on interpretation; 2) responses by various scholars; and 3) Justice Scalia's reply to the scholars. To narrow this review, I will only discuss one response that I found particularly poignant.
Ronald Dworkin notes that there are two kinds of originalism: semantic originalism (read the text to say what those who made it intended for it to say) and expectation originalism (read the text to have the consequences that those who made it intended for it to have). To explain the difference, Dworkin offers a hypothetical. Boss says to Employee, "Hire the best applicant for this job." Boss understands this to mean, "Hire my son for this job." Under semantic originalism, Employee should hire the applicant with the strongest qualifications. Under expectation originalism, Employee should hire Boss's son.
Applying the distinction to Constitutional provision: under semantic originalism it is clear that the Framers of the Constitution understood that executions would not be prohibited by the Eighth Amendments prohibition of cruel and unusual punishments (because at the time the Eighth Amendment was passed, executions were a common occurrence and the Framers would not have considered an execution cruel). However, under expectation originalism, it is less clear what the Framers intended--the understanding of what constitutes "cruelty" could change over time. Under expectation originalism, the Framers could have prohibited "cruel and unusual" punishments expecting that as time changed, understandings of "cruelty" would change too.
Dworkin makes this distinction to point out that Justice Scalia has no reason to accept semantic originalism but reject expectations originalism. Both are reasonable ways of reading the Constitution.
In reply, Justice Scalia reiterates his commitment to semantic originalism; he adds, however, that his semantic originalism would protect people from a more brutal future where notions of cruelty may be more cruel than today (or more cruel than when the Eighth Amendment was passed).
My own views on this are developing (and, I'll add influenced by Judge Posner), and I'm reluctant to say anything knowing that I'm about to review Justice Breyer's book to contrast Justice Scalia, however I want to note one thought: the way we apply the Constitution could change without necessarily meaning that the Constitution's meaning has changed. Perhaps instead of saying that the meaning of "equal protection" has changed since 1868, we should say that our understanding of humanity has changed; this new understanding of humanity includes the understanding that gay people are entitled to rights too. Not because we understand the Constitution differently, but because we understand gay people differently. The distinction between law and facts is well known within the study of law; perhaps we should recognize that it also applies to Constitutional law.