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.