The Meaning of Meaning

I stumbled on this interesting exchange the other day - a bit late, but it touches on an issue near and dear to my heart. It is between Alan Dershowitz and Antonin Scalia. Justice Scalia is dead, you say? Quite right, but it seems that early in Justice Scalia's term on  the Supreme Court, members of Mr. Dershowitz Constitutional Law class felt he, as their teacher, was a bit lopsided in his criticism of Justice Scalia's Supreme Court opinions, so they issued an invitation to the Justice to come debate Mr. Dershowitz. Nino, as Justice Scalia was nicknamed, promptly accepted. Would  that I was a fly on the wall of  that confrontation, but in lieu thereof, we have Mr. Dershowitz' report:

"So, in my classroom debate with the justice, I challenged him with the Supreme Court’s 1954 decision in Brown v. Board of Education, which ended racial segregation of public schools in the Southern states. As a matter of indisputable historic fact, following the Civil War the “people” who “adopted” the Equal Protection Clause of the 14th Amendment had to take into account what would surely be the continued segregation of public schools, and not only in the Deep South …

I asked Justice Scalia, whether if had he been on the court in 1954, he could have joined the unanimous court without violating his principle of originalism. He was both candid and self-effacing in his response, saying that no theory of constitutional interpretation — including originalism — was perfect. But he still insisted that originalism was “better” and “safer” than any other theory, because it precluded honest judges from substituting their own philosophies for those of the founding generation. In his own provocative words: “Show Scalia the original meaning, and he is prevented from imposing his nasty, conservative views upon the people. He is handcuffed. And if he tries to dissemble, he will be caught out.”

I feel sure that the Justice had a bit more to say than that about the subject, but that is all Mr. Dershowitz gives us, which is not to say Mr. D was being unfair to Nino. His review is uniformly affectionate, and he is trying to give the flavor of his relationship with Scalia in light of the significant differences they had on Constitutional interpretation.

But it raises my own  thoughts on Scalia's theory of Constitutional interpretation of originalism, and what a proper response to Mr. Dershowitz should be. For there is no doubt in my mind that originalism is the only proper interpretative theory for a purported Constitutional Republic. If the original meaning of the foundational document of a Republic is not determinative of its ongoing application, then the whole idea of a Constitution becomes essentially meaningless. You might just as well set up any small group of people and give them generic principles like 'justice' and 'fairness' and then wait for them to tell you what to do next. As we have seen, that is the net result of the 'living constitution' interpretive school which we have suffered under these many years.

But Brown v. Board of Education did conclude in a good result. Would originalism have precluded that result? And if so, what does that mean for constitutional interpretation?

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First, let's  highlight  what this tells us about the living constitution method. What Dershowitz wants to do (and what he says the Supreme Court did in Brown) is take the meaning of Equal Protection without regard to its original intended application and apply it to a current circumstance, the theory being that what the 'people' originally intended does not exhaust the possibilities inherent in the concept. Those possibilities remain to be discovered as the situation and circumstances change and as the sensibilities of the people themselves change.

On this view, Equal Protection then, when enshrined in the Constitution, becomes a transcendent entity, floating over the Republic, waiting for its inner truths to be revealed in some sort of epiphany. The catch is that there are no criteria to discern when and if this is a true epiphany, or instead, a momentary dream brought on by " … an undigested bit of beef, a blot of mustard, a crumb of cheese, a fragment of underdone potato." Or maybe it is simply a desire or preference of five very particular citizens who happen to be Supreme Court Justices. In any case, the only criteria limiting the extension of Equal Protection to new circumstances is the concept Equal Protection itself, which is a circular argument: this circumstance violates Equal Protection because … Equal  Protection.

On the other hand, originalism attempts to ground the Constitution not only in abstract principles - equal protection, due process of law, etc. - but in the original circumstances and understanding of the application of those principles. This ties the principles down to the ground, so to speak, such that the abstractions gain a necessary concrete sphere of operation and a corresponding limitation on their extension into different circumstances.

Both living constitutionalism and originalism depend on a deep metaphysic. Living constitutionalism asserts the essential independence of concepts from phenomena, that the reality of the concepts is given in the meaning of the concepts themselves without regard to the particular temporal moment they came to be understood. The concepts are thus 'freed up' to be applied in original ways in the future. This is essentially Platonic, emphasizing the aspect of the concepts that transcend time and history. Originalism on the other hand is more Aristotelian in its approach, asserting that the transcendent meanings of constitutional principles do not exist on some eternal plane but are realized only in concrete circumstances in the world, and that those concrete circumstances further define and limit the principles.

As in all human reasoning, there is still room for people to maneuver in an originalist interpretation - as Justice Scalia admitted when he said that no theory of interpretation is perfect. If constitutional principles are an amalgam of conceptual meaning and contingent historical circumstances then there is always the problem of deciding which aspects of the historically contingent is necessarily included within the constitutional concept. I think most liberal critiques of Scalia's opinions, to the extent they are on point, attack him on just this aspect of his reasoning. See, e.g. DC v. Heller, wherein Justice Stephens dissents in part, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."

But nevertheless, originalism does put some significant constraints on constitutional interpretation in ways that the living constitutionalist tradition does not. When a Court decides that Equal Protection applies because Equal Protection, the only response is some version of "I disagree because Equal Protection." At base, the resolution of any constitutional issue under the living constitution theory boils down to who has the power to decide the issue, which shows its basic incompatibility with republican principles of governance.

But finally, to the point: would originalism have precluded the decision in Brown v. Board of Education? I don't think so, for the simple reason that equal protection of the laws for blacks was the original meaning of the 14th Amendment, and pursuant thereto, at the time of enactment it was the common consensus that if the state is providing for the education of white people, then equal protection meant that it must also provide equal education opportunities for blacks. But we also know that historically, many thought that this requirement would be satisfied if blacks were afforded separate but equal education facilities. Now, the latter is quite clearly an implementation of the 14th Amendment standard, not a standard in itself. And I would argue that although equal education opportunities were mandated by the 14th Amendment, any particular implementation regime of that principle was not. Ergo, there is nothing about the originalist position that would prevent us, today, from concluding after manifest experience with the separate but equal education system that it was a failure and must be abolished as a constitutional matter.

Now maybe there is an originalist somewhere who would argue that separate but equal educational facilities were an essential part of the meaning of the 14th Amendment when it was passed; that is, that such a setup was known at the time to be wide spread in the South and the Amendment was therefore not intended to outlaw such things. But such an argument, as Scalia said, would be dissembling. Originalists do not argue from existing customs and institutions, nor from the intentions expressed in public debate at the time. They argue from the public meaning of the words used in the Constitution. Customs, institutions, acts, practices, and intentions may have a bearing on the public meaning, but they are not determinative. The phrase 'Equal Protection of the Laws' had a public meaning at the time of enactment, and that meaning can be divined from the customs and cases it was intended to apply to, but it is a real stretch to say that it means that all existing customs and practices were thereby deemed to be in accord with equal protection. That would make nonsense of enacting the

Amendment; if it was not intended to change anything, why go to the trouble?

No, originalism's 'public meaning' standard means that the words shall be taken seriously. If the citizens had intended to implement something different from equal protection of the laws, then they would have used different words. And any Court that comes up with a novel interpretation of those words to mandate a particular result in a case would be 'called out,' as Scalia said.

But notice what originalism prevents from being done. Under no scenario could anyone plausibly argue that the Equal Protection clause applies differently to different citizens based on their race.  That's just not in the originalist cards, because to an originalist, that issue was settled when the Constitution was amended and cannot be changed after the fact via some clever interpretation of the Supreme Court.

I invite you to cross reference in this regard, the many affirmative action decisions that jump through whatever hoop the judge can find to justify allowing behavior that clearly violates the 14th Amendment plain language. Under the living constitution non-standard, it is quite difficult to convince anyone of the constitutional odiousness of these kinds of decisions.

But under originalism, it is quite straightforward. As Justice Roberts stated in oral argument in Parents Involved v Seattle, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  This is the standard of the original meaning of the 14th Amendment, and because such standards matter under a jurisprudence of originalism, originalism is the only viable interpretation rule for our great Constitution.