Much of the discussion of this in the world will be about how utterly hypocritical it is of the Republicans to suggest that there is an obligation for the Democrats to not obstruct the confirmation process, given that just the other day they declared it a positive civic duty to obstruct the conformation of Merrick Garland, and that is quite a valid discussion. But I’m not up to doing any of that here.
Looking into this Gorsuch person a bit, though, I find that (as well as not being Merrick Garland) he is an “originalist” just like ol’ Tony, and perhaps even moreso (if that’s possible). This inspires me to reach into the archives and reprint here, lightly edited for venue, my ancient piece on why “originalist” is a bad name.
By way of introduction, it’s a bad name because everyone believes that it’s the Constitution’s original meaning that’s important; the division is between those who think the original denotation is important, and those who think it’s the original connotation. (Where “connotation” is used in its technical Philosophy of Language sense, not its informal “fuzzy subjective meaning” sense.)
The problem with the denotationist position can I think be highlighted by a very small thought experiment: the denotationist is obliged to hold that if we were to hold a Constitutional Convention today, and replace the entire text of the document with an exact copy of itself, the resulting document would be very different than the current one, and a very different set of things would be allowed and prohibited and so on.
And that seems just silly. (Menard’s example notwithstanding.)
But anyway, here is the original post, in the context of Scalia and 2005 rather than Gorsuch and 2017, but Truth is Timeless.
One of the cool things that Audible does is make certain ‘public interest’ type audio programs available for free. I don’t know if they do this out the goodness of their heart or their ad budget, or if someone pays them to do it, but it’s cool anyway.
One of the free things they have is a talk that Supreme Court Justice Antonin Scalia gave on the subject of Constitutional Interpretation, at the Woodrow Wilson International Center for Scholars last March. (Due to Audible’s bizarre site design I can’t figure out how to give you a pointer to it that will work, but if you search on “Scalia” you’ll probably find it. Although it’s free, I dunno if you can get it if you don’t have an Audible account.)
I’m a bit more than halfway through it, and it’s interesting. I’ve previously expressed the opinion that J. Scalia is a fascist theocratic loon, and I’ve teased him for his defense of state laws against masturbation in his Lawrence dissent; what I’ve heard so far doesn’t make me any more comfortable having him on the high court, but it does give me some additional insight into his character and legal thinking.
Scalia doesn’t like to be called a “strict constructionist”; he prefers “originalist”. His idea is that the words of the Constitution meant something when they were adopted, and that it’s that meaning that we must follow today. And when he says “meaning” he isn’t thinking of the general meaning or connotation of the words; he’s thinking of the very specific denotation of the words: the exact specifics of what they were thought to mean at the time.
So since when the 14th Amendment was adopted in 1868 no one thought that “equal protection” included the right of women to vote, it required a further amendment to give them that right. Scalia says that nowadays we would have done it on 14th amendment grounds instead, and he clearly thinks that that’s a bad thing.
[2017 Note: In fact even back in 1868, lots of people thought that “equal protection” did in fact include the right of women to vote; something that rather heavily undermines Scalia’s point. The fact that when talking about this stuff he apparently never mentioned Minor v. Happersett or the various controversies and demonstrations around it, was one more thing that lowered my opinion of his intellectual integrity.]
Since “originalist” doesn’t strike me as a neutral term (when was the last time you saw “unoriginal” used as a compliment?), let me refer to Scalia’s position as “denotationist”; the words of the Constitution (or any other law) must be interpreted as having the same denotation, as picking out the same parts of the world, as they had when adopted.
(At the extreme denotationist position, if the Constitution had said that the number of Justices on the Supreme Court should be equal to the number of planets around the Sun, then the proper number of Justices would be seven, since that’s what people thought the words denoted at the time. I’m not suggesting that Scalia would actually carry the idea this far, although it wouldn’t surprise me if he did.)
So what’s the alternative to denotationalism? In this lecture Scalia claims that the only alternative is to consider the Constitution not a legal document at all, but just sort of an “exhortation”. He claims that he’s asked all sorts of people at law schools what principle they propose in place of his, and none have had an answer.
This strikes me as baffling, since the answer is so obvious. Rather than interpreting the words of the Constitution according to what they meant when adopted, we should interpret them according to what they mean now. If we’ve discovered since 1789 that there are really nine planets, or since 1868 that equal protection does mean the ability to vote regardless of gender, then that’s what the Constitution should be read as saying.
(Jim points out a possible circularity here, so let me say explicitly that the view I’m outlining here isn’t the tautological “the Constitution means today whatever it means today”; I mean something more like “the words in the Constitution mean today whatever the same words mean outside the Constitution today”. Modulo politically irrelevant typographical shifts and so on.)
I’d like to call this alternate view “connotational”, in contrast to Scalia’s denotationalism. And it seems to me highly unlikely that no one has ever suggested it to Scalia, or that he wouldn’t have thought of it himself for that matter. Scalia seems to have an enormous blind spot where differing opinions are concerned; not only does he disagree with non-denotational views of Constitutional interpretation, he doesn’t even see those views. At one point in the speech he says that he would have decided a certain case in a certain way based on the original meaning (“meaning”) of some words in the Constitution, whereas the court actually decided the other way, “based on — well, I don’t know what!”
He’s obviously a smart guy, but apparently there’s a filter between the part of his mind that is sharp enough to understand arguments on both sides of an issue and the part that consciously notices those arguments. (Jim points out that Scalia wouldn’t be the only one with this problem.)
Another possibility is that Scalia is simply a propagandist, and that pretending that the other side has no argument at all is just a rhetorical device that he likes to use. That’d be a pity.
So anyway. The denotationist view says that when the Constitution uses phrases like “due process” or “equal protection” or “freedom of speech”, we should consider those phrases to be convenient shorthands for whatever set of things people thought they meant when the words were adopted. If it wouldn’t make the Constitution implausibly long, we could replace each one with a list of all the things that people at that time thought the words referred to.
The connotationist view, on the other hand, says that “due process” means the processes that are due, the proceedings that are appropriate, and if our opinion about what is appropriate has changed since 1798, it’s our current opinions that count. Similarly, “equal protection” means protection that is equal, and if people in 1868 didn’t notice that disenfranchising half the country didn’t constitute equal protection, so much the worse for them; our current government should be guided by our current understanding.
(Now in practical terms it’s nice that we have the 19th amendment there making it explicit; but I do think that a 14th amendment case for female suffrage should in principle have had a very good chance of success.)
So Scalia’s basic theory isn’t particularly inconsistent or anything; I just strongly disagree with it. His inability to acknowledge the very existence of alternative theories is a flaw, and not one that makes me fond of him.
What else? Scalia’s theory leads him to say some odd (or at least odd to me) things about the Constitution’s role in protecting minorities. At one point he says that protecting minorities from the whim of the majority is one of the most important things that the Constitution does. But because he’s a denotationist he sees it as protecting only those particular minorities that the Framers would have wanted to protect (or that the adopters of later amendments would have). So Catholics, for instance, are protected (hem, hem), but not people who want to make love to people of the same gender.
(Sidenote: Scalia always refers to male-male sex as “homosexual sodomy”; a little subliminal reminder that the Lord has destroyed whole cities over the issue; ref “theocratic” supra.)
The equal protection clause can’t allow people of the same gender to marry, because when the clause was adopted people didn’t think it meant that. A connotationist can say that we’ve decided since then that equal protection really does mean that; but Scalia doesn’t even consider that as a possibility. It’s not simply wrong, it’s just not on his radar at all.
If we want to provide equal protection or due process or freedom of speech outside the original denotation of those terms, he says, what we have to do is persuade our fellow citizens to enact the appropriate legislation or Constitutional amendments. Which is to say, if we want to protect a minority that wasn’t popular back in 1789, we have to persuade the majority to play nice. Which of course seems completely wrong to me, given the whole “Constitution protecting the rights of minorities” thing.
The Framers were large-minded folks; I think that when they said “due process” or “freedom of speech”, they didn’t just mean the things that those words meant in the 18th century, but that they meant whatever those words might turn out to mean as the species matured.
Hm, I’ll bet we might even be able to find some writing of the Framers that say that! I wonder what Scalia would do then…
And that’s that reprint from 2005; May 16th, 2005 specifically. There were at least a couple more weblog entries on this general subject, based on reader comments and other events of the day and so on, but that’s enough for now for here.
Maybe I should find some of Gorsuch’s writing, and see if he’s usefully interpreted as a denotationist (with an inability to even conceive of connotationism) like Scalia, or if he’s different in some interesting way.
But probably I’ll just get caught up in von Clownstick’s steady assault on the very idea of democracy, instead…