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«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»

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That is not strict construction, but it is reasonable construction.

It is curious that most of those who insist that the drafter’s intent gives meaning to a statute reject the drafter’s intent as the criterion for interpretation of the Constitution. I reject it for both.

I will consult the writings of some men who happened to be Framers -Hamilton’s and Madison’s writings in the Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus, I give equal weight to Jay’s pieces in the Federalist, and to Jefferson’s writings, even though neither of them was a Framer. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.

But the Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning; but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called the “living Constitution,” a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t i t ? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures. Recall the Common-Law Courts in a Civil-Law System [SCALIA] 113 words I quoted earlier from the Fourth-of-July speech of the avid codifier Robert Rantoul: “The judge makes law, by extorting from precedents something which they do not contain. H e extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the legislator.” 29 Substitute the word “people” for “legislator,” and it is a perfect description of what modern American courts have done with the Consti tu tion.

If you go into a constitutional law class, or study a constitutional-law casebook, or read a brief filed in a constitutional-law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. Judges simply ask themselves (as a good common-law judge would) what ought the result to be, and then proceed to the task of distinguishing (or, if necessary, overruling) any prior Supreme Court cases that stand in the way. Should there be (to take one of the less controversial examples) a constitutional right to die? If so, there is. Should there be a constitutional right to reclaim a biological child put out for adoption by the other parent? Again, if so, there is. If it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these in, if all else fails, under the Due Process Clause (which, as I have described, is textually incapable of containing them). Moreover, what the Constitution meant yesterday it does not necessarily mean today. As our opinions say in the context of our Eighth Amendment jurisprudence (the Cruel and Unusual Punishments Clause), its meaning changes to reflect “the evolving standards of decency that mark the progress of a maturing society.” 30 This is preeminently a common-law way of making law, and not the way of construing a democratically adopted text. I menRantoul, note 3 above, at 318.

Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).

114 The Tanner Lectures on Human Values tioned earlier a famous English treatise on statutory construction called Dwarris on Statutes. The fourth of Dwarris’s Maxims was as follows: “An act of Parliament cannot alter by reason of time;

but the common law may, since cessante ratione cessat lex.” 31 This remains (however much it may sometimes be evaded) the formally enunciated rule for statutory construction: statutes do not change.

Proposals for “dynamic statutory construction,” such as those of Judge Calabresi and Professor Eskridge that I discussed yesterday, are concededly avant-garde. The Constitution, however, even though a democratically adopted text, we formally treat like the common law. What, it is fair to ask, is our justification for doing so?

One would suppose that the rule that a text does not change would apply a fortiori to a constitution. If courts felt too much bound by the democratic process to tinker with statutes, when their tinkering could be adjusted by the legislature, how much more should they feel bound not to tinker with a constitution, when their tinkering is virtually irreparable. It surely cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change -to embed certain rights in such a manner that future generations cannot take them away. A society that adopts a bill of rights is skeptical that “evolving standards of decency” always “mark progress,” and that societies always “mature,” as opposed to rot. Neither the text of such a document nor the intent of its framers (whichever you choose) can possibly lead to the conclusion that its only effect is to take the power of changing rights away from the legislature and give it to the courts.

The argument most frequently made in favor of The Living Constitution is a pragmatic one: Such an evolutionary approach is necessary in order to provide the “flexibility” that a changing society requires; the Constitution would have snapped, if it had not been permitted to bend and grow. This might be a persuasive Rhodes v. Chapman, 452 U.S. 337, 346 (1981), quoting from Fortunatus Dwarris, A General Treatise on Statutes, with American Notes and Additions by Platt Potter (1871), 122.

Common-Law Courts in a Civil-Law System [SCALIA] 115 argument if most of the “growing” that the proponents of this approach have brought upon us in the past, and are determined to bring upon us in the future, were the elimination of restrictions upon democratic government. But just the opposite is true. Historically, and particularly in the past thirty-five years, the “evolving” Constitution has imposed a vast array of new constraints new inflexibilities -upon administrative, judicial, and legislative action. To mention only a few things that formerly could be done

or not done, as the society desired, but now can not be done:

admitting in a state criminal trial evidence of guilt that was obtained by an unlawful search;

permitting invocation of God at public-school graduations ;

electing one of the two houses of a state legislature the way the United States Senate is elected (i.e., on a basis that does not give all voters numerically equal representation) ;

terminating welfare payments as soon as evidence of fraud is received, subject to restoration after hearing if the evidence is satisfactorily refuted;

imposing property requirements as a condition of voting;

prohibiting anonymous campaign literature;

prohibiting pornography.

And the future agenda of constitutional evolutionists is mostly more of the same- the creation of new restrictions upon democratic government, rather than the elimination of old ones. Less flexibility in government, not more. As things now stand, the state and federal governments may either apply capital punishment or abolish it, permit suicide or forbid it -all as the changing times and the changing sentiments of society may demand. But when capital punishment is held to violate the Eighth Amendment, and suicide is held to be protected by the Fourteenth Amendment, all flexibility with regard to those matters will be gone. No, the reality The Tanner Lectures on Human Values of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.

There are, I must admit, a few exceptions to that -a few instances in which, historically, greater flexibility has been the result of the process. But those exceptions only serve to refute another argument of the proponents of an evolving Constitution, that evolution will always be in the direction of greater personal liberty.

(They consider that a great advantage, for reasons that I do not entirely understand. All government represents a balance between individual freedom and social order, and it is not true that every alteration of that balance in the direction of greater individual freedom is necessarily good.) But in any case, the record of history refutes the proposition that the evolving Constitution will invariably enlarge individual rights. The most obvious refutation is the modern Court’s limitation of the constitutional protections afforded to property. The provision prohibiting impairment of the obligation of contracts, for example, has been gutted. I am sure that W e the People agree with that development; we value property rights less than the Founders did. So also, we value the right to bear arms less than the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the State National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. W e may like the abridgment of property rights, and like the elimination of the right to bear arms; but let us not pretend that these are not a reduction of rights.

Or if property rights are too cold to get your juices flowing, and the right to bear arms too dangerous, let me give another example: Several terms ago a case came before the Supreme Court involving a prosecution for sexual abuse of a young child. The trial court found that the child would be too frightened to testify in the Common-Law Courts in a Civil-Law System [SCALIA] 117 presence of the (presumed) abuser, and so, pursuant to state law, she was permitted to testify with only the prosecutor and defense counsel present, the defendant, the judge, and the jury watching over closed-circuit television. A reasonable enough procedure, and it was held to be constitutional by my Court.32 I dissented, because the Sixth Amendment provides that “[i]n all criminal prosecutions” (let me emhpasize the word “all”) “the accused shall enjoy the right... to be confronted with the witnesses against him.” There is no doubt what confrontation meant -or indeed means today. It means face-to-face, not watching from another room.

And there is no doubt what one of the major purposes of that provision was: to induce precisely that pressure upon the witness which the little girl found it difficult to endure. It is difficult to accuse someone to his face, particularly when you are lying. Now no extrinsic factors have changed since that provision was adopted in 1791. Sexual abuse existed then, as it does now; little children were more easily upset than adults, then as now; a means of placing the defendant out of sight of the witness existed then as now (a screen could easily have been erected that would enable the defendant to see the witness, but not the witness the defendant). But the Sixth Amendment nonetheless gave all criminal defendants the right to confront the witnesses against them, because that was thought to be an important protection. The only significant thing that has changed, I think, is the society’s sensitivity to so-called psychic trauma (which is what we are told the child witness in such a situation suffers) and the society’s assessment of where the proper balance ought to be struck between the two extremes of a procedure that assures convicting 100 percent of all child abusers, and a procedure that assures acquitting 100 percent of those who have been falsely accused of child abuse. I have no doubt that the society is, as a whole, happy and pleased with what my Court decided. But we should not pretend that the decision did not eliminate a liberty that previously existed.

See Maryland v. Craig, 497 U.S. 836 (1990).

The Tanner Lectures on Human Values My last remarks may have created the false impression that proponents of The Living Constitution follow the desires of the American people in determining how the Constitution should evolve. They follow nothing so precise; indeed, as a group they follow nothing at all. Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation. What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.

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