Another Scalia Line on Not Ignoring the Constitutional Text and Traditional Meaning in Favor of the "Values Behind" a Provision:
From today's Confrontation Clause case (Giles v. California):
It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen.
This is the same sort of argument we saw in Justice Scalia's dissent in the self-representation case from last week. We'll see tomorrow if D.C. v. Heller will make it three.
Related Posts (on one page):
- Another Scalia Line on Not Ignoring the Constitutional Text and Traditional Meaning in Favor of the "Values Behind" a Provision:
- Wild Speculation:
Scalia is not the only one who recognizes this. But he is the most consistent about it.
For example, from Hall Street Associates (Justice Souter):
"Instead of fighting the text, it makes more sense to see the three provisions, §§9–11, as substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway."
Without underlying values you end up without any context for interpretation: you may use values of those to whom the laws were originally addressed; or of those who wrote the laws; or of those who live under the laws; but you have to look at somebody's values -- otherwise you end up being a context-free textualist.
For example, you cannot arrive at the First Amendment protecting private mail correspondence in the 18th century or e-mail in the 21st century (which is neither speech, nor press) without looking at the values behind the First.
The guns at issue in Heller were not around at the time of the founding. How would you decide how the 2nd Amendment should apply to such guns, without evaluating the values of concern under the 2nd amendment? Unless you suggest that the text means no limits on tanks and nukes, etc., which seems unlikely
You look to the relevant history and rely on a precedential test?
Scrivener: Just as well, since as Anuj Desai explained right on the Conspiracy, the Courts have arrived at secrecy of correspondence through the Fourth Amendment, not the First. He also noted that the protection on private mail correspondence is difficult to draw from the "values" of the adoption of the Fourth Amendment (and indeed, private mail, at least to England, was widely intercepted and read at the time, but that could fall under a crossing borders exception.)
It is, I think, somewhat easier to draw a protection for postal correspondence from the text, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
You can't say, "Well, my interpretation upholds the values this provision was intended to safeguard, so therefore it doesn't matter whether we're actually faithful to the provision."
What some judges do is, e.g., say that the various constitutional amendments are designed to give the defendant a fair trial, and therefore, what we need to look at is whether the trial was fair, and we can ignore the specifics of what those amendments say. Scalia's position OTOH is that if the constitution says that you have, e.g., a right to confront your accuser, then you do. Period.
See, e.g., Crawford v. Washington.
--PtM
The First and the Fourth protect two very different aspects of private correspondence (freedom to write things in letters and freedom from letters being opened or seized unreasonably) –– you can have one without the other, and one is not a substitute for another.
David M. Nieporent,
Scalia objects not to substituting values for provision, but rather to values determining the extent of enforcement of provision's guarantees. Of course, determining the extent of enforcement of provision's guarantees is just a long way of saying "interpreting a provision".
Thus freedom of speech becomes 'speech serves the purpose of enabling political debate' so things only get speech protection to the extent that Justice Breyer thinks they enable positive political discourse. The prohibition on establishment becomes 'no one wants a repeat of wars over relgion' so Breyer interprets the constitution to mandate him to do whatever he thinks will decrease religion tension.
But if that's an accurate reading of the constitution, why did the framers use legal language at all? Couldn't they have just set out a list of principles that judges should try to make good on?
Of course in reality there was probably never any true consensus on the purpose behind many constitutional rules. People had different goals and ideas, and while they might not have ever agreed on purposes, they could agree on a concrete legal rule, whether because it served multiple purposes, or whether it was an acceptable compromise for those with different goals.
By returning to constitutional purpose and reformulating the legal rules for constitutional provisions, Breyer is essentially refighting whatever debates produced a provision and giving victory to a different side or combination of sides.
Did he write that before or after Tom Sawyer?
But what is your point re the 2nd Amendment? That the right to bear arms has no limitations at all based on text? That people have a right to anthrax or RPGs?
In addition, I think guns rights advocates should be very worried about this type of language if they really think he's serious about it (I assure you he's not). That could easily lead to the conclusion that 2A only protects ownership of weapons that have similar capacities to those available at the time the Bill of Rights was ratified. I think that would be a horrible reading, but completely reasonable from an originalist perspective.
Just one more example of how Justice Scalia-- and his groupies on the right-- think he is a lot more brilliant than he really is.
I refer you to Scalia's opinion in Gonzalez-Lopez for yet another example of this. The right in question was not the right to a fair trial; the right in question was the right to counsel of one's choice. The court can't deny the latter on the ground that since the purpose is to ensure a fair trial, and the person got a fair trial, the sixth amendment has been satisfied.
I don't think I made a point wrt the 2nd amendment. If I were going to make such a point, it would be something along the lines of noting that one cannot say -- as many anti-gun rights activists do -- "Yes, the second amendment says that people can own guns. But the purpose of the second amendment is to enable citizens to protect themselves from the government. Since private ownership of guns no longer enables citizens to do this, the RKBA need not be read to protect people's right to own guns." The right is not the right to protect oneself from the government; the right is the right to keep and bear arms.
Mark Twain has too many quotes attributed to him already, so I prefer to attribute this one to terryp, who stole it and popularized it.
Oh, certainly content is protected by the First Amendment, but I think there's almost no need to look to the "values" underneath the First Amendment to protect the content of private letters or e-mail. In what way could it possibly mean that the freedom of speech and press are protected without the right to privately produce work on one's own "press" and publish it exclusively to one recipient? That's as far as prior restraint and similar issues goes; libel and sedition are different matters, of course, but to the extent that those have greater protection in private conversation and correspondence than in the press, that is due to the Fourth, not the First.
Note, too, that Justice Scalia does not even go so far as to say that "values" are never considered when attempting to consider a truly unanticipated situation and see if Constitutional protection extends there. In the case of new technology, such as Kyllo v. United States, he was willing to apply Fourth Amendment protection to new technologies even though they had not been anticipated. What he says is that you cannot consider values and then "enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values."
I a value-free textualist way.
Many people fail to understand that many provisions were understood differently at ratification than they have become after 200 years of legal, political and semantic drift. For example, the meaning of the entire 8th amendment or the meaning of "well-regulated". In my opinion, that drift shouldn't be allowed to trump the requirements of Article V.
As regards the 2nd amendment, I think that Scalia might be sending a message that although right to keep and bear arms does have as one of its purposes the furtherance of a well-regulated militia, that this doesn't determine the scope of the right. This accomplishes two useful things:
1) it sidesteps the machine gun can of worms. By saying that the right to keep and bear arms isn't tied to militia utility, SCOTUS can dodge the question of why it is ok to restrict ownership of THE quintessential modern militia arm, the assault rifle. I predict we will be able to come back to this one later.
2) it completely kills off all the old appellate reasoning that tied the constitutionality of gun control restrictions to militia service. If it does this alone, it will upend about 9-10 circuits worth of precedent and send them back to square one, presumably so they can begin deciding incorporation of this fundamental right.
I'll have to see the opinion to say more.
Okay, Frank. I will bet you $1000 that the opinion does not say that.
I don't think Scalia is saying that the court cannot look to underlying values, but that it cannot "extrapolate" to those presumed values and then enforce the provision "only to the extent" (italics mine) that those values are served.
If you look to the values, there must be a reason for it. Are you saying values may be used to expand a right but not limit it? And how do you prevent the 2nd Amendment from prohibiting RPG ownership unless you enforce the provision "only to the extent" that it serves the constitutional values?
Regarding the 2d Amendment, either an originalist or a textualist approach, as I understand those terms, would pretty clearly protect any kind of firearms or other thing designed to be used by an individual as a weapon. Anthrax is not "arms" within any natural or historical meaning of the term.
The reason 2d amendment rights wouldn't extend to "arms" such as nuclear weapons is that "the Constitution is not a suicide pact." If a weapon, by its very nature, cannot be safely controlled by its owner, and/or cannot be used without inflicting damage on innocent people, then there's no constitutional right to keep it. Things like nuclear weapons, anthrax, chemical weapons, etc., even if they can be considered "arms," wouldn't be protected because they can't be kept or used without placing others at enormous risk of bodily harm. It's similar to the 1st amendment exception for yelling "fire" in a crowded theater.
As for RPGs, it's not clear to me that they should be outside the scope of 2d amendment protection. Clearly, they are "arms"; however, I don't know enough about them to know whether they are capable of being safely handled and whether, if they were ever used, it would be possible to do so without endangering innocent lives.
That's an interesting argument, and I suppose it is true as a matter of reality (i.e., what the justices would rule), but it is also neither textualist nor originalist.
I would say that it's because the 2nd amendment guarantees a right to the arms you'd be expected to show up with in a militia muster, and the militia were expected to show up armed as standard infantry. Until the government starts handing out nukes to it's infantry, they won't be Second amendment "arms".
I've never liked that "the Constitution is not a suicide pact" bit; What it really means is that the Constitution IS a "suicide pact", and as such we're entitled to violate it.
You don't start talking about "suicide pacts" if you've got a good argument why a particular interpretation is wrong, rather than just imprudent.
Your concern about the RPGs seems to imply that, if judges can't disregard the plain language of the 2d amendment, chaos will result because everyone will be allowed to own RPGs. However, it's entirely possible to recognize that the 2d amendment confers an individual right to bear all manner of arms while nevertheless upholding statutory restrictions on keeping weapons that are, by their nature, incapable of being kept or used in a manner that protects the safety of people who are not the target of the weapons. In this way, you are not "limiting" the scope of the Constitutional right; you are simply applying the principle that one's own freedom only extends to the point where it begins to interfere with someone else's freedom. Assuming RPGs are stable (will not spontaneously explode) and can be used in a manner than doesn't cause indiscriminate damage (and I'm not sure if this is the case or not), then why shouldn't a responsible, non-felon, non-mentally deranged adult be able to keep one in his home?
Also, I wish people would keep in mind that the Constitution can be amended through our electoral institutions. If a fair and honest assessment of the 2d amendment holds that it protects ownership of RPGs, and the people find that objectionable, then they can amend the Constitution accordingly.
However, the constitutional amendment card is a weak one. That can be used in response to any Supreme Court decision (Roe, etc.)
Assume part of the Constitution contains provisions X and Y which supported a specific well-understood intent (aka "value," aka "balance of values") in the framers' time. Assume further that in the 21st century, it's quite clear that X still supports the framers' intent, but that Y is now destructive of it.
It seems to me that a) the principle enunciated in the Scalia quote would require today's courts to respect the "specific means" in both provisions X *and* Y, b) this is clearly a bad idea given the assumptions, c) Scalia is a bright fellow.
I'm forced to conclude that Scalia's views must be more nuanced than the quote would suggest, but I can't figure out any more-nuanced view he could possibly have which is a) not obviously unworkable, b) consistent w/ the quote. Can anyone help?
I believe Scalia would force both x and y to still be considered, even where the result ends up being rather silly or a bad result. He would then say, "look at how crappy that part of the Constitution is. Somebody ought to do something about it. But that's not my job. All I do is interpret the laws somebody else wrote."
It's amazing that I've never hear an originalist come up with one of their "only reasonable" interpretations of the constitution (it’s not quite as bad with statutes) that happens to conflict (in a serious way) with their own personal policy preferences. A truly amazing coincidence.
It's one thing to advocate in a court room that you're interpretation of the law is the only reasonable one, but to actually delude yourself into believing that you're opinion is always objectively and uniquely supported by statutory or constitutional text? That sounds more like mental illness.
The proper basis for upholding restrictions on RPG ownership, IMO, would be a determination that keeping or using RPGs, even by responsible, law-abiding citizens, would necessarily threaten injury to innocent bystanders, because it's an inherently unsafe and indiscriminate weapon (if indeed that determination can be made). The restriction is therefore necessary to avoid a conflict between the right of person A to bear arms and the right of person X not to be killed or maimed by that RPG (without due process of law, of course). It's simply an application of the principle that one person's rights can't impair another person's rights. I may have a right to travel interstate, but that doesn't give me the right to cross over someone else's private property to do so. I have a right to vote, but not to drive 100mph through town to get to a polling place. I have a right to bear arms, but not keep a weapon that can't be used without killing someone indiscriminately.
As for the idea that the 2A could be readily construed by an originalist to cover only those particular arms in use at the time the Constitution was ratified, that would seem to imply that the framers were working with a definition of "arms" that limited the term to 1780s-era weapons. Is there any historical evidence that the term "arms" has ever meant "weapons in military use in the 1780s"? Presumably the word "arms" was used for hundreds of years prior to the 1780s. Moreover, if someone in the 1780s were writing a history of the ancient Greeks, he presumably would have used the word "arms" to refer to the weapons used in combat against the Spartans. I see no basis whatsoever to graft a time restriction onto the word.
IANAL, so forgive me a somewhat tangential question. I read often on this blog that "The Constitution is not a suicide pact." It's often in quotes. Is this a direct quote from some opinion or some noted author? Is it a standard guideline of constitutional interpretation? If so, why, as it is not in the text itself.
Thanks in advance!
I didn't mean to suggest anything about expanding and limiting rights; I simply mean that Scalia's comments have not closed off the possibility that looking to underlying values may be helpful, so long as extrapolating further conclusions from those values is not used to end up at a position that supplants the provision in question. For an example, why not just use the 6th amendment issue about confrontation from the case above? If the text says x must be done, except in these few specific circumstances, then you shouldn't come up with a brand new exception because that specifically contradicts the original provision.
I don't see why this is a problem with second amendment cases. You can look to see what the values of the time meant, with respect to permitting people to bear arms, and try to apply the same set of values to the present day with its radically different kinds of weaponry. I take it Scalia's advice is to undertake this task without getting so far away from the original provision that you end up interpreting it only in terms of those underlying values, which you now presume to substitute for what provision itself actually says.
For example, if I focus on what I think the 2nd amendment was supposed to accomplish, and I decide that those underlying values could be supported today without allowing people to have guns, then I'm substituting my own extrapolation about values for what the words "bear arms" actually say. Now, we can reasonably disagree about what exactly those words mean, but obviously by "arms" they meant at least some kind of guns, so taking them all away would be to interpret "only" by an extrapolation from values, cut loose from the moorings of the written provision.
Justice Robert Jackson wrote that in a Court opinion. It is pithy. Sane people agree with it.
Wooga, that would be my best try as well. This approach to interpretation doesn't seem very workable long term, though, because it forces the amendment process to run at the 'clock rate' of societal/technological change in order to keep the Constitution (at least, the parts of it which speak of means as opposed to ends) aligned with the times. And that clock rate is accelerating very rapidly. Even if we could ramp up the amendment process to crank out changes (say) monthly, would we want to?
Wait, what did I just say? The fast clock rate is only required for the parts of the Constitution that discuss means as opposed to ends. So I guess the real upshot if Scalia's view became general is that lawmakers would amend the Constitution over time to be increasingly abstract, so that it ultimately describes only ends and the most stable of means (otherwise said lawmakers wouldn't be able to recess long enough to go home and regrease their palms:-).
So, I take it all back - Scalia's approach seems workable (if you're ultimately willing to settle for a Constitution only a philosopher could love:-). And, I can see how it would make his own job easier to in the meantime.
Hey, that Scalia's a pretty smart dude..
Why would we assume that the founders (or the people who ratified? I'm not sure who's mysterious mind I'm suppose to be channeling here) intended to transcend their time-specific understanding of the term "arms." While its certainly true that our understanding of the term "arms" has changed over time, I don't see why that necessarily means that the protections of the constitution change with it. It's not that "arms" means weapons available in the 1780s (or 91'), but that in the 1780s it meant arms available in the 1780s. That seems pretty reasonable to me.
Again, I'm not saying your interpretation is unreasonable, just that it is not uniquely reasonable.
The framers understood "house" to mean a place where people live. There is no reason to think they used the term to refer strictly to the styles of dwelling -- let alone the ACTUAL dwellings -- in existence at that time. Indeed, it would defeat the entire purpose of a Constitution to assume that it only applied to the world that existed in 1787.
As for "arms," it was understood by the framers to encompass military weapons. Surely, the framers understood that the specific technologies and capabilities of weapons would change over time. For example, the rifled musket was invented in the mid-19th century and eventually came into universal use. While the framers were all dead by the time someone invented the rifle, there's absolutely no reason to think that the framers wouldn't have recognized rifles as a form of military weapon and thus "arms."
It strikes me as complete sophistry to argue that, because an originalist construes the terms of the Constitution according to the meanings they had at the time of adoption, he must ultimately interpret the Constitution as a whole as something that applies only to the physical world that existed at the time of adoption. The one doesn't follow from the other.