Jeongkwan Lim, an international student from
South Korea, is in his second year at Albany Law School. He studied political
science and philosophy as an undergraduate and received a masters degree
in political science at Sogang University in Korea. Prior to law school, he worked for a local
government institution in Korea as a researcher. Jeongkwan is interested in international law
and philosophical debates about judicial power and the judicial process.
Jeongkwan's essay was prepared for the
Judicial Process Seminar, fall 2012.
Why does Justice Antonin Scalia refuse to change
his position on textual “originalim,” even though Judge Richard Posner provides
evidence showing that his judicial philosophy severely lacks the coherence that
is necessary to be persuasive?
Scalia, as a faint-hearted “originalist,”
repeatedly insists that even though “originalism” is not perfect, it is
relatively superior to “non-originalism.” According to him, it is superior with
respect to “objectivity,” and objectivity is the most important characteristic
when interpreting the Constitution.[1]
Nevertheless, when Scalia says “originalism” is
an objective interpretive methodology, he is using two words that contradict
each other: objective and interpretive. According to the Cambridge Academic
Dictionary, “objective” means “not influenced by personal beliefs or feelings;
fair or real.” “Interpretive” means “related to explaining or understanding the
meaning of something.”[2]
Interpreting something is thus subjective.
Without subjective personal beliefs or feelings--e.g., based on personal
experience--we cannot shape our understanding of the meaning of something.
Posner anticipates Scalia’s probable response to
the critique that there is no such “objectivity,” as Scalia claims, when we
interpret the general words in the Constitution. As Posner puts it: “text as
such may be politically neutral, but textualism is conservative.”[3]
To hide the subjective character of
interpretation and to claim objectivity, Scalia uses the standard of a
reasonable person. Scalia says that “words mean what they conveyed to
reasonable people at the time they were written.”[4] However, it is the
judge who decides what is reasonable.
As a theory and philosophy, textual
“originalism” has great weakness. To justify its position, instead of pursuing
theoretical perfection, “originalism” seems to stress how judges interpret law
as a behavioral norm: that judges should be passive interpreters. As such, the
debate of judicial interpretation changes its fighting field from one of logic
to value.
Value usually is something that is hard to
explain with logic, but it has strong power among its followers. A debate about
value tends to fall into a debate over dogma. One example of value conflict is
that about religion. It entails little or no compromise.
A dogma that textual “originalsim” falls into is
the dogma that the methodology justifies its conclusion. To remain in the area
of theory, however, textual “originalism” needs to admit that its methodology
is self-contradictive.
If we say that textual “originalism” tends to
justify its conclusion by its methodology, Breyer’s “active liberty,” by
contrast, tends to justify its methodology by its conclusion. Ideal democracy
(the conclusion) provides legitimacy for the judicial interpretation (the
methodology).
However, unlike Scalia who seems unwilling to
admit the flaws of “originalism,” Breyer admits the weakness of his theory. He
acknowledges that “the primarily democratic nature of the Constitution’s
governmental structure has not always seemed obvious.”[5]
Therefore, Breyer’s analysis of interpreting the
Constitution focuses on determining the democratic character of the
Constitution.[6] For this reason, Posner says that Breyer is actually the
better “originalist.”[7]
The interesting thing is that there is a common
area between Breyer and Scalia. When they interpret laws on a practical level,
both of them use a reasonable person’s interpretation standard.
Of course, there is big a difference too. Breyer
asks not what the actual legislators thought, but what a reasonable legislator
would have thought, thereby adopting the fiction of the reasonable
legislator.[8] Scalia, on the other hand, asks what the actual legislators
thought, by seeking the meaning of the words when conveyed to reasonable people
at the time they were written.[9] So, it seems like a debate between two
reasonable people who, however, are living at different times.
Posner points out the impossibility of applying
the ancient Athenian ideal of democracy to the real world. He sees Breyer’s
notion, that “‘delegated democracy need not represent a significant departure
from democratic principle,’” as providing a basis for undermining judicial
restraint which is based on representative--rather than direct--democracy.[10]
To those who support judicial restraint,
representative democracy is a complete form of democracy. But in Breyer’s
approach to interpretation, representative democracy is not fully democratic.
Therefore, in his view, considering the democratic character of the
Constitution, representative democracy should be improved through judicial
review.
Finally, there is the question of why democracy
should even be the most important standard for judicial interpretation. There
are other vital areas of Constitution concern--for example, national security.
In a conflict between democracy or a citizen’s liberty on the one hand, and
national security on the other, how would Breyer's active liberty respond to
that situation?
[1] Antonin Scalia, Originalism:
The Lesser Evil, 57 U. Cin. L.
Rev. 849, 862–63 (1989).
[2] Cambridge Academic
Dictionary, http://dictionary.cambridge.org/dictionary/american-english/ (last
visited, Nov. 14, 2012).
[3] Richard A.
Posner, The Incoherence of Antonin Scalia, The New Republic (Aug.
24, 2012, 12:00 PM), http://www.tnr.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism#.
[4] Id.
[6] Id. at
1703–04.
[7] Id. at
1716–17.
[8] Id. at
1711–12.
[9] Posner, supra note
3.
[10] Posner, supra note
5, at 1701–02.
