Monday, December 3, 2012

Textual Originalism versus Active Liberty

By Jeongkwan Lim

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, (last visited, Nov. 14, 2012).
[3] Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (Aug. 24, 2012, 12:00 PM),
[4] Id.
[5] Richard Posner, Justice Breyer Throws Down the Gauntlet, 115 Yale L. J. 1699, 1702 (2006).
[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.