Professor Dwarkin disagrees with Scalia's textualism and expresses his stance by examining the nuances within the Bill of Rights.
Dwarkin examines the First Amendment, arguing that the most strict definition of textualism only defends free speech, not freedom in writing, singing, or art. Dwarkin thinks examining legislative intent is far from the "chameleon" that Scalia describes it to be. Rather, he sees it as necessary to keep up with the changing mores of society. In the case of the First Amendment, free speech could - and should - extend to Emails, Tweets, and posts on Professor Hurley's Blog. None of these forums are communicated through spoken word, and no founding father could have intended freedom of speech to cover a non-invented Internet, but the First Amendment clearly extends in this case.
Scalia replies by saying that further freedom of speech outside of the original text, such as freedom of speech on the internet, gets clarified in further statutes that are derived as corollary from the First Amendment (147-148). It seems strange, that if Scalia truly supports textualism, that he ruled with the majority in Citizens United on the grounds that campaign contributions were "free speech."
Dwarkin further examines Textualism in the context of the Eighth Amendment. Dwarkin examines the Eighth amendment by examining the application of the death penalty, but Scalia's response, that capital punishment was in practice during the founding fathers' time, is particularly persuasive to me. I think the ambiguity lies in waterboarding. The founding fathers had no notion of waterboarding and could not have envisioned it as cruel or unusual punishment. Today, waterboarding is not unusual, particularly in Guantanamo bay, so the morality of waterboarding lies in the definition of "cruel."
Scalia would respond to waterboarding much like he responds to the principle of "cruel and unusual punishment." He writes "What it abstracts... is not a moral principle of "cruelty"... but rather the existing society's assessment of what is cruel." (145) Scalia would use the people in a society's judgment to determine whether or not a punishment is cruel.
The problem with Scalia's response is that he leaves a moral question - the cruelty of waterboarding - up for the people to decide. This is incredibly dangerous. If the people change their mind in favor of waterboarding, does it suddenly become permissible? What if California opposes waterboarding but Texas supports the practice, is it now permissible in only Texas? The "societal assessment" is little more than the will of the people arbitrarily making hefty moral decisions.
Scalia's textualism also maintains problems in the specific wording of the 8th amendment:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." That last phrase "Cruel AND unusual punishments inflicted" is sobering. Is a punishment allowed if it's cruel OR unusual? If the government allows police to rip the fingernails out of its prisoners as long as it's common practice (not unusual) does Scalia see a problem? If the government treats people unequally by enacting unusual punishment, is it allowed so long as that punishment is not cruel? After all, the strict text of the 8th amendment is still upheld even in this dystopian society. Scalia's rebuttal is both morally and practically lacking because it is indefensible.
Daniel--
ReplyDeleteI had similar concerns to you in Dworkin's proposal of "semantic originalism" (the idea that in certain cases, what the authors intended to say is grounds for moral expectations and principles which the authors may or may not have been capable of upholding in their time). I see Dworkin as supporting the idea that these moral principles laid out in the text of the Constitution are understood and known by most, which is why they are included in the text of the Constitution. For example, while the framers may not have known all the mediums that constituted speech, they agreed that freedom of speech was indeed important. However, are these moral principles really known by most? If not, then Scalia's theoretical threat can enter here. Scalia would most likely claim that governing a body of people based on ideals they may or may not be aware of is synonymous to Nero "posting edicts high up on the pillars, so that they could not easily be read" (17). Granting the idea that most do understand and endorse certain moral principles within the Constitution, I see yet another problem. How can Scalia, in defense of his originalism, claim that semantic originalists should follow the "moral perceptions of the time" (i.e. the time in which the moral principle is being applied) than the time at which the moral principle was laid out in the Constitution? Wouldn't semantic originalists have to take into account the moral principle laid out in the Constitution at the time it was written in order to truly view the Constitution as fixed at the time of enactment? Scalia's semantic originalism seems to lack the crucial element of what makes originalism originalism as he appeals to the "moral perceptions of the time [(i.e. today)]".
Daniel,
ReplyDeleteI would like to specifically comment on your response and explanation on Scalia's use of textualism, regarding the Eight Amendment. At the end of your comment, you question Scalia’s use of the word “and” in the part of the Eight Amendment that states, “Excessive bail shall not be required… nor cruel AND unusual punishments inflicted.” You present an interesting tension between Scalia’s interpretation of the word “and” versus the word “or.” You then go into great detail and demonstrate concern in Scalia’s possible acceptance of brutal treatment of an individual if it thus considered not unusual. I would urge you to go back to the beginning of Scalia’s argument where he first introduces his self created term and definition of Textualism. Here, he states that in order to be “a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed” (23). While you are not “too dull” in your response here, I do not believe you fully consider the “broader social purposes” of the statute.
Nevertheless, Scalia goes on to distinguish Textualism from Strict Constructionism, a form of interpretation where one attempts to understand the text in a much too literal manner. I believe that in your perception of the last section of the Eight Amendment you use a philosophy of interpretation similar to that of Strict Constructionism. One must not be so meticulous, as this creates complications and makes it more difficult to interpret the statute most accurately. One must rather focus on being reasonable when interpreting such statutes and thus must interpret the particular text within context. Concentrating on the intention or meaning of the word “and” versus “or,” is unnecessary. Why would a government allow for the cruel torture of prisoners if it were typical? Common sense plays a key role in the interpretation of statutes. It is simply irrational to allow for such mistreatment. We would have to live in a society with immoral foundations. Taking into account existence and high value of morality in our society today, such mistreatment would never be considered “not unusual.” We must interpret the specified part on the amendment with its most reasonable “broader social purposes.” In fact, I would argue that the word “cruel” is the driving factor in interpreting this amendment; “cruel” treatment should not be usual. Therefore, if a punishment were to be primarily cruel, it should not be permitted.
There is a crucial ambiguity in Scalia's own text that you resolve in one direction, but I wonder if a more plausible interpretation of the text resolves it in another. You seem to think that when Scalia roots judgments of cruelty in the moral perceptions of the time, he means "the judgments at the time at which the the 8th Amendment is being applied." But what if it means, instead, "the judgments at the time at which the 8th Amendment is adopted." Which is the more reasonable interpretation of his text?
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