An Analysis of Scalia and Dworkin’s Debate on Constitutional Interpretation
Based on the book A Matter of Interpretation: Federal Courts and the Law
The U.S. Constitution has vague clauses that are open to interpretation. Justice Antonin Scalia believes that these clauses should be interpreted according to the original meaning of the texts, while treating them as dated principles (Scalia 145). Professor Ronald Dworkin argues that the Constitution should be read as general moral principles (Dworkin 123). Dworkin’s arguments against Scalia’s principled and dated semantic intent fails, because he did not recognize that the Constitution does not have to be read morally for laws to evolve with our changing society. Instead, these new laws should be enacted by the legislature.
Scalia believes that we can not interpret the Constitution by determining the Framers’ intent. It is undemocratic for laws to mean what judges think the lawmakers wanted rather than what they actually publicized in the law’s text (Scalia 17). In addition, judges can advance their personal wishes while pretending to make decisions based on the Framers’ likely intent (Scalia 18). The law would then mean whatever the judges think they should mean, rather than what the text itself actually meant. We must derive the meaning of laws from the text itself to prevent judges from arbitrarily creating new policies.
Scalia does acknowledge that the text should be interpreted reasonably. Strict constructionism, or understanding the law strictly based on the literal text, is wrong in his opinion (Scalia 23). In Smith v. United States (1993), the defendant traded a firearm for cocaine. He will have a longer sentence if he “uses … a firearm” (Smith v. United States) in a drug crime. A strict constructionist would see trading the firearm as using it, as the defendant obtained benefits from the firearm. Scalia, who thinks of himself as a “proper textualist” (Scalia 24), believes that the text should be understood as how it ordinarily means. In this case, “uses … a firearm” (Smith v. United States) should be interpreted as using the gun as a weapon. That is how people ordinarily understand the meaning of using a firearm. Therefore, Scalia believes that trading the firearm is not using it.
Since the law should be interpreted based on the original meaning of the text, the idea of a Living Constitution is problematic. Living Constitutionalists believe that the Constitution should be interpreted differently as time passes to tailor it to our changing society. Judges decide on how the laws should change (Scalia 38). Scalia argues that this school of thought grants too much power to the judiciary. Judges can create laws by extending the logic of precedents, even if these new laws are inconsistent with the Constitution’s original meaning (Scalia 39). The Constitution then becomes what judges want it to mean. This is making laws through the common law system, not interpreting the Constitution (Scalia 40).
The Constitution was created to always guarantee essential freedoms and prevent future generations from abolishing them (Scalia 40). Society will not certainly improve, and the Framers want the American people to have their constitutional rights no matter how the world changes. This is part of the reason why they enacted the Bill of Rights (Scalia 43). The judiciary should not have the power to change constitutional laws and reduce the people’s rights.
Scalia addresses that the argument of how The Living Constitution gives more flexibility does not stand. Instead, this ideology created new limitations. For example, anonymous political campaign literature now can not be banned due to McIntyre v. Ohio Elections Commission (1995) (Scalia 42). Judicial decisions made under the idea of living constitutionalism establish more inflexibilities.
Lastly, living constitutionalists do not have a principle on how the Constitution should evolve (Scalia 44). The Constitution becomes open to various forms of interpretation. The people will support judges that agree with their ideas of what the Constitution should be. The courts will create laws that appeal to the majority (Scalia 47). This is against how the Bill of Rights protects against the tyranny of the majority (Scalia 47). The Living Constitution makes it difficult to protect the people’s rights.
Dworkin points out the inconsistencies with Scalia’s beliefs and decisions. Scalia holds the position that laws should be interpreted by their texts, not the legislature’s intents. Yet, he not only acknowledged intent but used it to support his reasons for going beyond the literal text. Scalia used intent to include handwritten notes under the First Amendment’s guarantees of free speech and press. He then used intent to take away trading a firearm from the meaning of using a firearm (Dworkin 116). His inconsistencies are due to the fact that Scalia failed to recognize the different kinds of intentions (Dworkin 116).
There are two kinds of intentions. One is what authorities intended to write in the text. Another is what they expected the consequences of the text to be (Dworkin 116). With this comes two versions of originalism. The first is semantic originalism, where interpreters search for what the legislature intended the text to mean. The second is expectation originalism, where interpreters search for what the legislature expected the consequences of the text to be (Dworkin 119). Scalia believes the law is what the text says, not what the legislators expected the consequences to be. This makes him a semantic originalist (Dworkin 120).
There are two ways a semantic originalist can understand the Constitution. One is the concrete and dated interpretation. In reading the Eighth Amendment, the concrete and dated interpretation would mean that specific punishments regarded as “cruel and unusual” (U.S. Constitution, amend. 8) when the amendment was passed are prohibited. The other way is the principled and moral interpretation. This means that punishments that are morally cruel and unusual are forbidden (Dworkin 120). Dworkin argues that the concrete and dated interpretation is wrong. The Framers used concrete language in the Constitution when they wanted to, but purposely wrote the Eighth Amendment in vague terms (Dworkin 121). This indicates that the Eighth Amendment can not be read in the concrete and dated interpretation.
However, if Scalia is a semantic originalist who reads the Constitution in a principled and moral sense, that contradicts with his ideas. Scalia believes that the Eighth Amendment does not prohibit the death penalty, since the Fifth and Fourteenth Amendments indicate that life can only be taken after due process (Scalia 46). Yet, if the Eighth Amendment describes a moral guideline, capital punishment can become cruel and unusual under today’s standards (Dworkin 120). Dworkin believes that Scalia’s philosophy is inconsistent.
Dworkin believes that the living Constitution means that its clauses are general moral principles. Judges then decide on new cases based on these old guidelines and precedents (Dworkin 122). Scalia rejects this view and argues that the Constitution should only protect the rights that it would have guaranteed when the provision was enacted (Dworkin 123). Scalia believes that the Framers intended the Constitution to be concrete rather than abstract, that the Framers want to guarantee certain rights even if later generations have different ideas, and the Framers do not want judges to have discretion over how constitutional morality should evolve (Dworkin 123). However, Scalia’s arguments all place the expectations of the Framers over the text, which was what he disagreed with.
Dworkin explained why Scalia’s arguments are flawed. Dworkin pointed out that the Framers had written a mixture of concrete and abstract rights. The Framers also would have clearly specified that the Constitution should be interpreted as dated provisions if that is what they intended. If the Framers did not anticipate that judges would decide what the law means, then Scalia’s argument fails (Dworkin 123). In addition, there sometimes was no consensus on what the law meant when it was enacted. When the First Amendment passed, people had many disagreements around what free speech meant (Dworkin 125). If there was no dated consensus to begin with, Scalia can not interpret the Constitution based on what people generally understood the laws to mean when they were passed.
Scalia agrees that he is a semantic originalist. However, he believes that Dworkin presented a false dichotomy between the concrete and dated interpretation and principled and moral interpretation. Instead, Scalia believes in the principled and dated semantic intent (Scallia 145). The Constitution should be read as the abstract, moral principles people believed in when it was ratified. Otherwise, the Constitution can not guarantee any rights if future generations have different moral perceptions (Scalia 146). The rights the Constitution granted can not change just because time passed (Scalia 147). Scalia points out that he is deriving semantic intent from context when he says that abstract clauses are dated because the concrete clauses are. He is not basing this idea off of the Framers’ expectations.
Scalia’s response is adequate, and Dworkin’s objection fails. Dworkin can argue that society’s current moral perceptions are different from the moral beliefs when constitutional provisions were enacted. For example, the congressmembers that passed the Fourteenth Amendment upheld racial segregation. Yet, the Fourteenth Amendment was later used to support the desegregation of schools in Brown v. Board of Education of Topeka. If judges were to rule against desegregation because that is what people understood the law to mean when the Fourteenth Amendment was passed, that would be viewed as wrong in today’s standards. In addition, interpreting the Constitution through a principled and dated semantic intent prevents moral growth to take place.
This objection would fail. Moral beliefs do change over time, but it is the job of Congress to pass new laws that reflect our changing society. The courts should only interpret laws and not create policy. Judicial activism usurps power from Congress and goes against the separation of powers that the Constitution specified. If racial desegregation is morally right under today’s standards, Congress should pass a law requiring desegregation. Although the decision in Brown v. Board of Education of Topeka is right and racial desegregation should be upheld, the Supreme Court’s action of going beyond their powers to make laws is wrong. Only Congress should make new laws that reflect the moral growth of our society.
The debate between Scalia and Dworkin illuminated the different ideologies on constitutional interpretation. Scalia advocated for originalism through the principled and dated semantic intent. Dworkin, on the other hand, believed in interpreting the Constitution through general moral principles. The Constitution’s meaning can change over time. Dworkin failed to recognize that Congress creates new laws as society evolves, and the judiciary should only be interpreting the Constitution. The courts can not take this policymaking power away from Congress. Only then will we have true separation of powers, which protects our constitutional rights.
Works Cited
Scalia, Antonin, et al. A Matter of Interpretation: Federal Courts and the Law — New Edition. Edited by Gordon S. Wood et al., NED-New edition, Princeton University Press, 1997. JSTOR, https://doi.org/10.2307/j.ctvbj7jxv.
