At times members of the Supreme Court, including Justice Scalia, have said the words of the Constitution should be read in ordinary language. But recent majority opinions in the Confrontation Clause, like Crawford v. Washington and Giles v. California, written by none other than Justice Scalia, are more consistent with the view expressed by Mike Rappaport and me that the Constitution is written in the language of the law. That language includes ordinary language but also terms that have a distinctly legal meaning as well as legal interpretive rules.
The Confrontation Clause provides that “in criminal prosecutions, the accused shall have the right . . . to be confronted with witnesses against him.” In Crawford the state wanted to introduce a tape recorded statement made by the defendant’s wife to the police. The statement appeared reliable but the defendant had not been afforded the opportunity to cross examine the witness. The Court in an opinion by Justice Antonin Scalia recognized that the question of whether the clause applies only to witnesses at trial is not answered by the “Constitution’s text . . . alone.” Justice Scalia stated that “One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, those whose statements are offered at trial or something in-between.”
To resolve this uncertainty, Justice Scalia looked at the legal meaning of the constitutional provision.
Fans of the late Justice will treasure a new collection of his speeches.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
Mike Rappaport and I have defended the proposition that the Constitution is written in the language of the law. We recently noted in a post that much of modern originalist scholarship by academics relies on this language in interpreting provisions of the Constitution.
Another important indication of this legal turn in originalism is Reading Law: The Interpretation of Legal Texts by the late Antonin Scalia and Bryan Garner. There they suggest that interpretation of law must be guided by canons of interpretation and offer an analysis of fifty seven such rules. While some of these canons might be considered purely linguistic, many others are clearly legal such as the rule of lenity, the absurdity rule, and the rule that implied repeals are disfavored.
The renewed attention to legal interpretive rules also reflects the rise of legal formalism after its eclipse by legal realism.
Richard Primus has graciously clarified his claim about originalism. It is not that many originalists believe it has never been tried in simple sense. Instead, “in the context of my initial post, ‘never-been-tried’ is a shorthand for something like ‘not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.’ ”
I don’t entirely agree with this narrower claim and I don’t think most other originalists would either, but it is a more interesting question. There are two parts to my demurral. Richard focuses on testing the question of whether originalism constrains decision makers and creating stability. Constraint and stability are not for me the chief advantages of originalism. Nor are they for such varied theorists as Randy Barnett, Keith Whittington, or Jack Balkin. And I am not sure the advantages that these theorists emphasize are reducible to an empirical test through case law. Mike Rappaport and I, for instance, have suggested that the original meaning of the Constitution is likely beneficent by other kinds of arguments. In short, there other justifications for originalism and other ways of making these justifications plausible than empirical review of cases . Originalism can be evaluated in other ways.
A more direct disagreement is that I think there has been enough practice of originalists to suggest, although not prove, that originalism does lead to substantial, albeit not perfect, constraint. Let me set aside the more distant past which was the subject of a prior post. In recent times Antonin Scalia and Clarence Thomas were the most consistent adherents of originalism and not coincidentally they agreed in about ninety percent of cases.
Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.
And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.
A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.
With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.” The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency: He makes appointments (except in the trade area) that on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.
First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.
Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task. Gorsuch is in the top 2 percent of all federal judges in this ability.
Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.
In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues. First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it. The highest honors from our legal and academic establishment all go to justices who begin or drift left. Justice Scalia, of course, was impervious to all such temptations.
But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.
And it was clear from the time of his appointment that on the Court Scalia would be a member of only one party—the party of law. In the academy, he showed his independence by dissenting on issues of central importance to his colleagues, like affirmative action. At the Office of Legal Counsel in the Ford Admnistration, however, he even made allies unhappy by keeping the executive branch within the metes and bounds of the law.
Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written.