What the Framers Meant v. What the Framer's Said; or, How Justice Scalia Jumped the Shark

    This was not a good week for the nation’s senior Supreme Court Justice. On Thursday, he saw his former BFF, Chief Justice Roberts, bolt from the conservative coalition on health care and become a liberal rock star. Moments before that decision was announced, he was also abandoned by the Chief on the “Stolen- Valor-Act” ruling, which gave evildoers everywhere free reign to lie about their military exploits.

       But it his dissent in this week’s first big decision—Arizona v. United States—that signaled to both the left and the right that Scalia might just have lost his mind. In this decision, a majority, including Chief Justice Roberts, ruled that, in granting the federal government the power to regulate immigration, the Constitution intended to grant the federal government the power to regulate immigration. Scalia disagrees. The uniform-rule-of- naturalization clause, he insists, grants the federal government the power to set citizenship requirements, but not the sole authority to secure the borders.
       Fair enough. I don’t agree, but this is within the scope of interpretations that the text will support. But, in his extraordinarily political bench statement, Scalia went much further and imagined what the Framers of the Constitution would have thought about the Court’s ruling:

So the issue is a stark one: Are the sovereign States at the mercy of the federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Imagine a provision—perhaps inserted right after Art. I, §8, ci. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits from Independence Hall.

       With this statement, Justice Scalia is playing a very dangerous game. It is a very common game among the far right called "What Would the Framers Have Thought If Only They Could Have Seen Our Day?” As historically interesting as this question may be, it is a spectacularly bad way to try to interpret the Constitution. Trying to derive the Framers’ Intent about the issues they faced is a tricky proposition enough proposition—as not all of them intended the same things; trying to imagine their intent about issues that they did not face is inherently impossible.
       But even if we could know with certainty what the Framers would have thought about immigration, it would still be a fallacy to try to interpret the Constitution based on those intentions. There is a huge difference between the interpretive strategy known as “textualism,” which I fully support and which tells us that we need to interpret the Constitution based on the words on the page in their original context; and the interpretive fallacy known as “intentionalism,” which holds that we must try to derive the intentions of the Constitution’s authors, from any source available, and apply those intentions to the text. The first of the strategies is consistent with the rule of law. The second is not.
              My understanding of the difference between textualism and intentionalism has been informed by a remarkable book called A Matter of Interpretation that was written in 1998. One key passage from this book tells us that

it is simply incompatible with democratic government, or indeed with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. . . . It is the law that governs, not the intent of the lawgiver. That seems to me the essence of the famous American ideal set forth in the Massachusetts constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us. 

             This, it seems to me, gets to the heart of the decision in Arizona v. United States. What the Framers might have THOUGHT about the rights of states to control their own borders is irrelevant; everything that they actually WROTE conferred the responsibility for setting immigration policy on the federal government alone.

             Oh, and the author of these words, and of the excellent book A Matter of Interpretation is, as  you have probably already guessed, none other than Justice Antonin Scalia. 

Glenn Beck and the "Original Intent" Fallacy

Divining the intent of the Constitution’s framers through the use of extra-Constitutional sources has become a major part of the fringe-conservative position, as we can see in books such as David Barton’s Original Intent (5/e 2008), which examines the religious beliefs of dozens of Founding Fathers in an attempt to prove that the Constitution was never intended to restrict religious expression in the public sphere, and Larry Schweikart’s What Would the Founders Say, which tries to divine the Framer’s opinions on hot-button issues from environmental protection to health care. 

In both books, the original intent argument leads—as it must always led—to the uncritical amalgamation of opinions that we have been discussing. Inherent in the assertion that the Framer’s had an original intent is the assumption that they had the same intent—otherwise there would be no way to use it as an interpretive standard to begin with.     

In his just-released Being George Washington, Glenn Beck spends one chapter discussing the Federal Convention. He insists that “original intent was the only intent” and that we must (like George Washington) bind ourselves to the original purposes of the men who wrote the Constitution. In summing up the convention, Beck tries to put this the original purposes of the Constitution into four succinct statements, the first and last of which illustrate the fallacy of the original intent position more than my own analysis ever could:

(First Principle) The Constitution recognizes the existence of natural law. In the Declaration of Independence Thomas Jefferson referred to “the laws of Nature and Nature’s God.” Natural law recognizes the existence of God and acknowledges that God established a natural order of things for this earth and the people of this earth.

(Fourth Principle) The Constitution was created on the assumption that America would function under a free-market economy, recognizing and protecting property rights. John Adams wrote: “All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of . . . protecting property.”[1]

            Both of these propositions give us a lot to argue about. It is not at all obvious, for example, that the Jeffersonian notion of “natural law” included a God that modern American Christians would recognize as such. As an Enlightenment Deist, Jefferson saw God as something like the sum total of the laws of nature rather than as a personal deity who interacted with the human race. Furthermore, neither Jefferson nor Adams would have even understood the term “free-market economy” as we understand it today. Jefferson in particular saw America as a primarily agrarian economy, and he viewed all kinds of financial markets with suspicion.

            Two facts, however, are beyond dispute: 1) that Jefferson did not attend the Constitutional Convention in Philadelphia in 1787; and 2) that Adams didn’t attend it either. At the time the two men were ministers to, respectively, France and England, and they knew only as much about the Constitution as they read in letters from home. Both the Declaration of Independence and the Constitution of Massachusetts (the source of the Adams quotation) are very different things than the U.S. Constitution, and there is no historically acceptable way to use the words found in one of them to support an originalist interpretation of the others. Such an interpretive strategy only makes sense if we assume absolutely ideological unity among the Founders, which is a really dumb thing to do.

I believe that “original intent” is a spectacularly bad standard for interpreting the supreme law of the land. I do not say this as an America-hating liberal who sees the Constitution as a “living, breathing document” that can mean anything that we want it to mean. I believe that we must interpret the Constitution according to the meaning of its words, with careful attention to how those words were used in their historical context. Words mean things, and those meanings matter. Where the Constitution is concerned, meanings matter very much; if the Constitution does not have fixed meanings, we do not live under the rule of law.

But interpreting the Constitution according to the meaning of its words—the jurisprudential standard known as “originalism”—is very different than interpreting it according to the intentions of its authors. Nobody has drawn this distinction more clearly than Supreme Court Justice Antonin Scalia, who, though often cited as an exemplar of the Framer’s intent standard of interpretation, rejects that standard in no uncertain terms:

It is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. That seems to me one step worse than the trick the emperor Nero was said to engage in: posting edicts high up on the pillars, so they could not be easily read. Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver.”^[2]

The view of original intent propounded by the fringe conservatives is directly at odds with the democratic principles they espouse, the common sense they advocate, and even the Supreme Court Justice they revere. This difference between “original meaning” and “original intent” may seem slight, but it separates Scalia’s mainstream conservatism from that of the right-wing fringe. Scalia himself alluded to this distinction in a 1997 lecture at the Manhattan Institute for Policy Research. When asked whether or not he would consider scaling back the application of the Bill of Rights to the states through an originalist reading of the Fourteenth Amendment, he replied, “I am an originalist. I am a textualist. I am not a nut.”^[3]

            Unfortunately, many of those driving public opinion and government policy in the era of the Tea Party cannot say the same.

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[1] Beck, Being George Washington : the indispensable man, as you've never seen him: 240-44.

[2] Antonin Scalia and Amy Gutmann, A matter of interpretation : federal courts and the law : an essay, The University Center for Human Values series (Princeton, N.J.: Princeton University Press, 1997). 17.

[3] Antonin Scalia, "On Interpreting the Constitution,"  http://www.manhattan-institute.org/html/wl1997.htm.