Textualism

A Matter of Interpretation: Federal Courts and the Law

Scalia’s basic maxim is reasonable enough: the law is what the text actually says.

But the application to the constitutional law is of course the main point of interest.

And so, roughly, his view is this.

What the constitution forbids is what the text forbids.

What it requires or grants is what the text requires or grants.

Due allowance made for use of technical language or for changes in the meanings of words or expressions with the passage of time, of course.

But on the whole, adherence to the constitution is adherence to the text of a written and duly ratified document, authoritatively enjoined upon us by an authoritative process.

And that, he says, explains what judges are required to do when called upon to decide the constitutionality of a law or other act of government.

They are to strike down what does not comport with the text of the constitution and uphold what does so comport, he says.

And a very reasonable view that would seem to be, for an honest world of honest judges, politicians, and citizens.

But all three of those classes are such inveterate liars, frauds, and mountebanks that no child should be permitted to know anything of politics, law, or history until reaching the age of, say, forty-five.

And perhaps that is still too young.

Anyway, Scalia argues that this is what judges ought to do by appeal to the idea of democratic legitimacy.

Judges who do otherwise than adhere to the text of the law are making law, or anyway flouting it, he says.

And that it is not their proper role in a democracy.

But, unfortunately for his position, he also spends a few lines of this short book quickly demolishing the idea that law in all its detail can ordinarily be thought to express the will even of the legislators who voted for it, or the president who signed rather than vetoed it, or the portion of the public that voted for those particular officials.

And was not the constitution a small but rich package very busily containing detailed and critical individual provisions as presented to those who ratified it?

Were they not forced, as the US president regularly is, each to a simple up or down choice, take it all or leave it all, in every last detail just as it was?

And in the case of all but the most recent amendments to the thing are not the authors and ratifiers of the US constitution in any event all dead?

Meaning that those of us who are alive were not even presented with that choice to take it or leave it?

And is it not true that Article V allows only for piecemeal, minute amendment of the constitution while there is no provision at all for wholesale replacement of it?

And that the specified amendment process is cumbrous, exacting, slow, and remarkably – and intentionally – undemocratic, requiring extensive cooperation of elites across many states and much time?

And is it not also true that, though the men of Philadelphia ignored Article XIII of the then US constitution and illegally invented not only its replacement but also the process by which it would be ratified, we cannot presume Scalia would condone, let alone urge, any such thing today on any excuse whatsoever?

No to mention that such a revolt of the elites is hardly the sort of thing the people could ever be expected to arrange.

How ridiculous, then, is the claim that the text of the constitution as it stands represents the sovereign will of the people!

Everyone not a child knows what poppycock that is, and how utterly out of reach of the people, individually and collectively, is even ordinary law, let alone the constitution.

I am not saying Scalia is wrong to protest when judges and indeed the entire classe politique and even the citizenry as a whole egregiously and with unrelieved hypocrisy refuse both honest, conscientious adherence to the text and the responsibility to change it where it does not express their will.

But they have their reasons.

And loyalty to the text out of loyalty to a democratic legitimacy that it does not possess is just silly.

Besides, should we expect a man to be honest when he has fallen among thieves, murderers, and cutthroats?

Pshaw.

But then, the man himself is a hypocrite.

Scalia’s ruling made a reasonable degree of sense in Heller.

It is at any rate not manifestly silly to think of the DC government as a mere babysitter for congress and to think the congressional power to govern DC (Article I, Section 8 of the US constitution) is subject to the strictures of the Bill of Rights.

District of Columbia v. Heller

But then came the question of incorporation of the 2^nd Amendment.

An interesting take on D.C. v. Heller Incorporation

Tom King wrote in 2009 that some people were hot to incorporate Heller into the privileges or immunities clause of the 14^th Amendment in order to facilitate future imposition of everything in the constitution that could be viewed as granting or defending peoples' rights onto the states.

But the aim is foolish and the means are a lie.

Slaughter-House was right and that is just not what the privileges or immunities clause means.

Section 1 of the 14^th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

To get the point, see the privileges and immunities clause of Article IV of the US constitution.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

And then its ancestor in Article IV of the Articles of Confederation.

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the united States, or either of them.

The point of the earlier two is to prohibit any state A from denying to citizens of any other state B (or a subset of the “free inhabitants” of B) the privileges and immunities afforded by A to its own citizens (or “free citizens”), whatever exactly they may be.

And the point of the clause of the 14^th Amendment is to prevent any state A denying to any class of citizens of the United States the privileges or immunities of any other citizens of the United States - though what exactly that would come to is even more obscure.

In any event, each clause forbids the states treating certain specified groups of people as second class citizens in some manner or other in comparison to others.

And that is all that these clauses can honestly be claimed to do.

And in particular this clause of the 14^th does not bind the states to observance of any part of the Bill of Rights or of any other restraints imposed by the constitution on the federal government.

It just flat does not say that or anything remotely like that, and I do not believe for a moment it has more than rarely, if ever, been sincerely misunderstood to mean that.

And nothing in American history or our specifically political history justifies the notion that the authors or ratifiers of the 14th intended or accomplished that particular revolution regarding the constitution, the power of the states within their own borders, or the relation between the federal and state governments.

But the Supremes did go on to incorporate the 2^nd Amendment in a followup to Heller, all the same, though only Clarence Thomas bought the privileges and immunities line, supported in an Amicus brief by CATO.

The Second Amendment, Incorporated

Scalia and the others of the majority went for the conventional eyewash about due process, though early in his book he says due process guarantees nothing but that life, liberty, and property shall not be taken otherwise than in accordance with law.

Scalia, who in this book denigrates the very idea of incorporation as balderdash.

McDonald v. Chicago

Scalia, the noble textualist, abandoned principle in service to the conservative, Republican political agenda and to service of its constituency.

Well, what a shock.

Update 04052013 at 0742 hrs EDT.

All right, Scalia's arguments that the details of law do not represent the intention of those who passed it or signed it or whatever do not undermine it's democratic authority.

It is perfectly possible for an authority to command compliance with whatever a given person or a given text commands, though the authority does not know all or even any of what that person or text will or does command.

And in such a case it is the clear intention of the authority that you obey that makes those unknown commands themselves binding.

And though the original authority had no intentions that could throw light on the meaning of the commands of the secondary authority, those of the secondary authority can very well do so.

And so on the authority of the constitution one accepts the authority of the legislature to make law.

And on the authority of the legislature one accepts the authority of . . . .

Ooops.

The constitution has authority to delegate authority to the congress.

But the congress has no authority to delegate its own authority to others.

Is it even constitutional for congress to pass into law whole monstrous volumes the contents of which are wholly, or nearly wholly, unknown to it except in the most general of terms?

Doesn't look it.

Invisible ink embedded in the legislative power?