February 20, 2002
Religion and the court

Dahlia Lithwick discusses Supreme Court Justice Antonin Scalia's reasoning behind his recent claims that Catholic judges who believe the Church's teaching that capital punishment is wrong should not be on the bench. Scalia, who is a devout Catholic, is not arguing for his own resignation but is advocating his position of originalism, or strict constructionism, as a means around this dilemma.

Originalism (colloquially known also as "strict construction") requires interpreting the law based on the principle that the Constitution means only what it meant to the framers who adopted it. For Scalia, capital punishment was constitutional at the time of the framers, so it is constitutional today. Period. Since the framers had no intention of protecting the right to choose, he can oppose abortion as a constitutional matter while purporting to be morally neutral on the issue. As he said at the Pew conference: "[M]y difficulty with Roe v. Wade is a legal rather than moral one. I do not believe - and no one believed for 200 years - that the Constitution contains a right to abortion." By following the flame of originalism, Scalia can lead his flock of tortured Catholic judges out of the constitutional wilderness. Their personal morality and even the dictates of the church are immaterial. Their only judicial task is to follow the intent of the framers. This method of interpretation allows Scalia to look value-neutral, even when his own writings often belie that neutrality. As he told the Pew conference while defending the death penalty, "That is not to say that I favor the death penalty. I am judicially and judiciously neutral on that point."

This is, as Lithwick points out, quite convenient for Scalia, as he believes the Founders views coincide nicely with his own. If you know and follow the intent of the Framers, you have a clear way to rule on any given matter of law.

I have two basic problems with this. One, of course, is that it's easy to say that one knows the intent of men who have been dead for two centuries. We have their written words, but to say that there is One True Way to interpret those words strikes me as being rather presumptuous. Hasn't the email revolution taught us that it's often easy to misconstrue written communications? The Framers aren't here for us to ask them what they really meant, so why is Mr. Justice Scalia's interpretation of their words any more correct than, say, Barbara Tuchman's or Arthur Schlesinger's? Or mine or yours, for that matter.

Further, while Scalia dismisses the idea of interjecting modern mores into Constitutional considerations, he has no problems with using old ones. If the Framers would have considered abortion to be unconstitutional, might it be in part because they also considered women to be unworthy of the right to vote? Or that certain people could be owned as slaves? In other words, if these intelligent and well-educated men existed today instead of in the late 18th century, isn't it at least possible that some of them might view the abortion question differently? If so, then why must we deny ourselves 200 years of extensions and improvements to the ideas that they acted upon at that time?

Which leads me to my second objection. It seems to me that the Framers themselves recognized that what they were writing down in 1787 was unlikely to be perfect forever, since after all they did build in a mechanism for amending their work. I believe there are two basic reasons why we have done so: To respond to situations which the Framers could not have foreseen, and to fix their mistakes.

An example of the former is the 20th Amendment, which changed Inauguration Day from March 4 to January 20. Originally, several months were needed for the transition to a new administration - it took weeks just to get everyone to DC. By 1932, when the 20th was ratified, advances in transportation and in communications - which were clearly unknown and presumably unknowable in 1787 - made the long transition period awkward and necessitated the change.

The rest of the amendments, however, were more or less corrective in order. Nothing fundamentally changed about women (#19) or blacks (#13, #14, #15), or the Senate (#17) that necessitated their Constitutional change in status. This was the country recognizing that what the Framers had intended originally was wrong, and that it should be fixed.

If you accept that, then it follows that the original intent of the Framers is not sacrosanct. By all means, it should be considered and weighed heavily, but surely someone with Scalia's intellect is capable of deciding when the original intent is not in the best Constitutional interests of the United States in the 21st century. Again, why shouldn't we be allowed to use what we've learned in the two centuries since ratification to interpret our laws?

Antonin Scalia's approach to the Constitution is certainly a valid one. It's logically consistent and is useful for approaching practical problems. He claims it's the best approach. I disagree, but that's a matter of opinion. If he says it's the only approach, however, then he's wrong. Our history clearly says so.

Posted by Charles Kuffner on February 20, 2002 to Legal matters | TrackBack

Just found your Web site. Ran into it while looking for details on Justice Scalia. Excellent!

Thought you might enjoy the Commentary to the January edition of Religion in the News. Here's a link to it:



Mister Thorne
Daly City, CA

Posted by: Mister Thorne on March 16, 2003 5:37 PM


Posted by: Bozko1 on October 20, 2004 5:32 AM