Dworkin Vs. Scalia On Constitutional Interpretation

Riley S.
Altman- Philosophy of Law
Final Research Paper

The Human Element of Law:
Dworkin vs. Scalia on Constitutional Interpretation

The constitution is the document that binds American citizens to uniformed rule. Granted states may vary their decisions for a vast array of laws, the focus of my argument will be dealing with the interpretation of the nation’s most powerful document. The two stances of interpretation I will be addressing are those of Ronald Dworkin and Antonin Scalia, who are known for disagreement amongst their constitutional views. On the one hand there is Scalia, who labels his position “textualism”, where judges are encouraged to stray away from discretion and make clarifications to vague statutes in a commonsensical
manner. Dworkin on the other side promotes said discretion to be used, but only in order to find the semantic and expectation “intent” of the law. Scalia’s textualism provides less room for progressive legal interpretation than Dworkin’s version of originalism. To argue this I will further explain my take on why constitutional progressiveness is just for society, and clarify why taking a textualist’s stance (such as that of Scalia) would hinder it. “To recognize untruth as a condition of life--that certainly means resisting accustomed value feelings in a dangerous way; and a philosophy that risks this would by that token alone place itself beyond good and evil”(Friedrich Nietzsche: Beyond Good and Evil). Cynical as it may seem, I fear the power that tradition-for-the-sake-of-tradition has on a growing populace. The Nietzsche quote did not randomly fall out of the sky, it came from criticism against blindly accepting moral premises, and though Scalia is not necessarily a dogmatic arguer he does display the desire for uncontested validity in his constitutional interpretations because of their basis on original text. My definition of “progressive” as it applies to this paper focuses on room for legal interpretation on the basis of applicable moral considerations. It is not a bold claim to say that human ethics are evolving hand-in-hand with cultural standards, and with that considered there must be some accommodation for this changing factor within the US legal system. Dworkin sees the constitution as a “living document”; something with embedded abstract principles, and to that I must approve. This general view on the constitution is exactly what is needed to continue on to a more just legal system, rather than strictly adhering to traditional textual interpretation for guidance, because it allows for the introduction of said “applicable moral considerations”. According to Dworkin, the traditional question on the matter of what I refer to as applicable moral considerations is: “how far is morality relevant in fixing law’s content on any particular issue?”(Dworkin, Justice in Robes, 1). This is a reflection of his interpretational goal that moral discretion is necessary for the constitution’s adaptation to society, which it must undergo to survive (furthering the image of a ‘living document’). In response, Scalia worries that the ideal of a “living constitution” actually fails to protect individuals from the excessive powers of democracy, in that unnecessary moral considerations take the forefront: “[a] democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect ‘current values.’ Elections take care of that quite well”(Scalia, Originalism: The Lesser Evil). Concerning what I call applicable moral considerations, the easiest translation would be legal discretion on the part of judges. This of course contrasts Scalia’s position by suggesting that moral discretion is actually necessary to promote the greater good. This is not intended to be an insult to elections process, but the form of democracy that the US practices does not essentially take these evolving standards into account such as Scalia suggests. Majority rule on ballots does not determine ethical progress, and as much as it might be a noble pursuit to trust the electoral process there exist undeniable flaws. To elaborate on the flaws that justice Scalia’s defense rests on, there is an underlying predicament residing in societal indifference. In 2012, there was a voter population in the US of 221,925,820 people. Of them, 130,292,355 actually cast a valid vote1 (considering voter eligibility). With a 58.7% rate of voting, true public opinion is not legitimately heard, and the politics that sway attitude one way or another on a pressing issue distort proper justice. The idea that unjust laws can only be suitably fixed via the democratic process puts too much faith in the belief that the public truly will change what they see as immoral by voting on it.
One way that taking a Dworkinian approach to the law might combat this issue of indifference is by forcibly shedding light on the problem of an ambiguous law on the books, and by implementing case-specific rulings (by discretion) when faced with vague laws so as to suffice for a just decision when one is needed. If the public is not aware of an ambiguous law that has potential to cause legal disagreements, the easiest way for them to learn it is to hear about a court’s ruling on a case dealing with said law. This is where Dworkin’s stance probably receives the most criticism, because on the surface it seems as though law must be altered in some way to decide on an official meaning. Regarding this worry, Dworkin states: “I do not mean simply that the government may change its mind, and regret either the goal or the means of its earlier decision. I mean that a responsible government may serve different goals in a piecemeal and occasional fashion, so that even though it does not regret, but continues to enforce, one rule designed to serve a particular goal, it may reject other rules that would serve that same goal just as well”(Taking Rights Seriously 3). This idea plays on the fact that laws are enacted to serve a particular end, and that there should be no interpretation contrary to the original principles of that law. For Dworkin, this ambiguity of language in the law is actually very important, because he sees it as being part of a self-conscious effort to compromise. Rightfully so, Dworkin proposes that a strict historical interpretation of law (such as the one Scalia presents) is potentially unjust, because it cannot conceive of the unknown circumstances that will inevitably challenge a certain understanding of a law, and cannot adequately adapt to a changing environment in which these laws are applied.
Going back to the need for a progressive understanding of the constitution, there are certain factors that present inescapable predicaments for Scalia’s textualism. The most common example that is used to question constitutional interpretation is the Eighth Amendment forbidding “cruel and unusual punishment”. Generally there are two views that are brought up concerning this question, 1) this includes punishment deemed cruel and unusual up to the date of the law’s enactment, or 2) this includes ALL punishments that are truly cruel and unusual. The difference in implications of the two is significant: one requires a textual, historical, and linguistic approach, whereas the other demands moral reasoning. As appealing as legal tradition may be to some, it is linked to a relatively concrete historical background, which has little to no potential to change. “Progressive” by definition means to move forward, and enforcing a certain legal understanding of a law by appealing to a historical and linguistic background does not leave much room for the present-day to speak its mind. Scalia’s example is that the death penalty was not regarded as cruel or unusual by the founding fathers because it was a common practice at the time. Easy as his point is to understand, there may be a commonality between modern-day debates about legal interpretation and the composition of the constitution itself. It was the principles of the time that the founding fathers were appealing to when writing the constitution, and I would argue that it is the principles of this modern-day that are so desperately trying to make their way in to the US constitution. Dworkin brings up that judges “should decide the cases before them in a forward-looking, consequentialist style”(Justice in Robes 21); I would add that this lingering on past historical reference is an unnecessary anchor to the progressive momentum of law.
Another way that Scalia’s position presents a hindrance on legal progressiveness is in his criticism of Dworkin’s “living constitution” model.
To Scalia, this translates to wavering meaning of constitutional text; whereas Dworkin might call is a just interpretation of its “true meaning”. Though they have both been considered some form of “originalists”, the historical significance of the law’s origins differs between them. Scalia and Dworkin both believe that it is important to look to former courts’ rulings on cases for a frame of reference, however Dworkin’s focus is on the values and principles that were present at that time so as to apply them to novel cases. In this way there is an application of traditional morals to new legal predicaments, showing that the constitution is far from abandoned, but open-ended and subject to necessary expansion to adapt to a progressive
society.
A progressive society runs into immediate legal problems when a defendant is faced with a law that does not explicitly cover every scenario. As Dworkin might say there are inevitably going to be times for even the most sophisticated lawyer that the law runs out. A textualist approach is perhaps subject to this drawback more than most other philosophies of law, due to its basis in textual, historical, and linguistic evidence, and seemingly has no way around it. This situation is indeed problematic, because if there were a lack of legal evidence, the defendant would always win from the plaintiff not being able to prove that the law was on his or her side. These are ideal situations for the practice of “discretion” on the part of the judges. Discretion is a word always given with a cautionary notice by Dworkin, as he understands that it may be conceived to imply many various radical views. It is not simply the free will of judges imposed on court-rulings (as many contest); instead he generally sees it as principled considerations as they apply to cases involving added legal interpretation (due to an unspecified range of possibilities), which the law might encompass. In this notion, there is a boundary in which the range of discretion is definitely limited: “[discretion], like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction”(Dworkin 114).
Defining the element of discretion is an important distinction between Dworkin and Scalia’s legal theories, as it serves as the most obvious contradiction between the two views. Scalia’s textualism is without any mention of discretion; there is instead an emphasis on the importance of common-sense interpretation of what the law encompasses. One notable problem that Scalia himself sees with judges using discretion is that there would be a tendency for judges to desert historical precedence in favor of their own views: “[the] inevitable tendency of judges to think that the law is what they would like it to be will, I have no doubt, cause most errors in judicial historiography to be made in the direction of projecting upon the age of 1789 current, modern values -- so that as applied, even as applied in the best of faith, originalism will (as the historical record shows) end up as something of a compromise”(Scalia, Originalism: The Lesser Evil). This compromise that Scalia speaks of is in fact the vey tool that promotes the societal indifference to change laws, which I mentioned earlier. A compromise does not raise alarms for people, and is not a clear demonstration of needed change; it is the equivalent of sweeping a problem under the rug so that one may move on to other issues that are more easily dealt with because of legal clarity and escapes proper justice. In order for progressive ethics to prevail there cannot be a continuation of compromise with the hopes that the public will eventually rally together to change law, there are factors of morality which must be weighed against one another in order to determine which moral considerations are applicable to each case.
Dworkin sees law as integrity, which includes the notion that the constitution is comprised of abstract moral principles. This I argue is the stance needed in order to advance the US legal system, because it implies no definite interpretation of any constitutional statement. Many principles that were considered just during the time of the founding fathers no longer have support in this day and age, such as the ethics of slavery. Strict textual, historical, and linguistic interpretations of law will show that there is an undeniable change of public opinion on the matter as time progressed until its eventual abolishment after a civil war. I bring up this case as an example to show that principles unavoidably change through time, thus governing a nation strictly on the text of the constitution (which was originally written with principled considerations) ends with abrupt limitations on the ability to display modern-day cultural values. Dworkin’s “law as integrity” approach instead conforms to the need for contemporary ethics to play a role in a judge’s decision when confronted with ambiguous law.
In order to advocate for a progressive society, there must be the possibility for constitutional interpretation to change through time.
The position that Dworkin suggests is based on this possibility, though not required, and is designed with the possibility of legal adjustment in mind. Scalia’s Originalism: The Lesser Evil describes how he is emphatically against the idea of differing readings of the constitution, and that a nonoriginalist approach to the constitution allows for too much variance on a newly arrived meaning of a law: “I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned”(Scalia). As valid of a concern as this may be, Dworkin’s position in particular is not simply permitting the rewriting of laws by judges. It is true that differing opinions are inescapable through Dworkin’s position, but they are varied on a case-by-case basis due to specific mitigating circumstances and ethical considerations, rather than judges’ desires to change the meaning of laws. The word “discretion” itself also implies some level of secrecy on the part of the adjudicators; hence there is no fuel to start a legal debate over the meaning of a law, such as Scalia worries
about. Another worry that Scalia might have over Dworkin’s view is determining when it would be appropriate to modify or use discretion to change or dictate rule of law. “First, it is necessary, though not sufficient, that the judge find that the change would advance some principle, which principle thus justifies the change… Second, any judge who proposes to change existing doctrine must take into account of some important standards that argue against departures from established doctrine, and these standards are for the most part principles”(Dworkin 118). This is a solid framework for judges to use as a guide in deciding standards to appeal to, and just because it does not originate directly from the constitution does not mean that it is invalid. This decision-making model is supported by principles that have been widely accepted, and simply elaborates on the fact that these principles are subject to evolving standards in culture. One obvious reason as to why this is an impossible stance to take under Scalia’s textualism is that these “evolving standards” change at a rate much faster than constitutional amendment could ever allow. For example, if the constitution were to be interpreted solely by the position that Scalia takes, technological advancements would be seen as similar to unstoppable virus. The rate at which new technology is introduced to the market is too fast for ethical consideration or construction of new legal regulations, thus there is no chance for amendments or new laws to be passed to accommodate these new technologies before predicaments arise. In short, technology will find an unspecified rule of law before a law is made to handle the problem. The solution I suggest is in applying Dworkin’s theory, which allows for discretion in vague cases like this until legislation is passed to specify a rule. One main difference between Dworkin and Scalia is Dworkin’s clarification that the law is not simply a system of rules. Through this notion it seems as though Dworkin has an added defense, which is nonexistent in Scalia’s arguments for textualism. He points out that judges are often known to change rules as necessary, however they are not permitted to adjust law, differentiating the implications of “rule” from “law” (and more specifically, “the law”): “[when] the positivists do attend to principles and policies, they treat them as rules manqueés. They assume that if they are standards of law they must be rules, and so they read them as standards that are trying to be rules”(Dworkin 119). These are not laws above the law, the rules that may vary in courts as needed are instead guides for procedure, from which discretion might be appropriately applied to reach the most just conclusion. In the progressive society of the US, these rules are constantly changed because of the frequent introduction of previously unforeseen variables (e.g. technology advancements and evolving standards of culture), and because of this repetitive change in rules there is similarly a need for principled judgments in order to make ethical rulings in court when the law is uncertain. Though Justice Scalia suggests that US citizens are governed only by what is promulgated to the people, I argue that this position does not account well enough for the ambiguity that arises so often in constitutional text, and that the forward momentum that The States have is hindered by insistent reference only to textual evidence from its original binding document. This textualist view does not take into consideration the rate at which society is progressing, and fails to recognize the necessity for principled discretion by judges when the law does not make an undeniable conclusion to a controversial case at hand. Dworkin’s emphasis on principles is a much needed tool for the legal system and acknowledges the importance of true justice, as opposed to coming to a compromise, which Scalia suggests is appropriate under the circumstances given that constitutional amendment is a provided option for citizens in the US. Scalia’s textualism provides less room for progressive legal interpretation than Dworkin’s version of originalism, due to unaccounted-for vagueness of constitutional text, lack of principled considerations when society demands otherwise, and a basis in historical, linguistic, and unchanging legal notions, which prohibit the evolution of law as progressive culture demands it. Some may see Dworkin’s principled approach to originalism as a dangerous route to take when interpreting the constitution because of his concept of adjudicatory discretion and law as integrity, but to take the progressive human element out of the consideration of law will prove much more dangerous, as judges will be ill-equipped to handle advancements that test the encompassment or specificity of the law.

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