Domestic, Most Recent Column, Op-Ed, Opinion — April 12, 2011 at 4:43 pm

We The People, They The People

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In “A Matter of Interpretation,” Justice Scalia contends that the only correct way to interpret a democratically adopted document like the U.S. Constitution is by looking into the “original meaning” of the text. He insists that the judge’s role in interpreting the Constitution ought to be limited to that of safeguarding the “fixed” constitutional values as understood by the people who ratified it, until the people themselves choose to modify them. If the judges approach the Constitution with a common-law mindset that seeks to make sense of the law or improve upon it, they would be denying the authority of the Constitution as a special document ratified by the people themselves and thus undermining the very foundation of our democracy.

When I first encountered this “fixed meaning” theory in my constitutional law class, my immediate, gut response was that this seemed less like a democratic judge’s guideline for interpreting the Constitution and more like a rabbi’s approach to interpreting the Ten Commandments. In theocracy, judges seek to preserve and proclaim what has been revealed by the Lord, and His Words serve as the ultimate rule of recognition. In democracy, however, everyone actively searches for better understanding of the Constitution, and it is precisely this process—this untiring quest for the truth—that gives meaning to the principles we seek to uphold. Yet in theocracy and in Justice Scalia’s democracy, the law simply exists because the Lord (“the people” in Justice Scalia’s case) has spoken and its meaning is fixed until the next revelation by the Lord (or “the people”).

Justice Scalia often contextualizes his “original intent theory” with the following example: in 1990 Supreme Court case Maryland v. Craig, Scalia rejected the majority’s decision to allow a child too frightened to testify in the presence of a sexual attacker to testify with only the prosecutor and defense counsel present, with the defendant, the judge and the jury watching over closed-circuit television. Citing the words of the Sixth Amendment, “the accused shall enjoy the right . . . to be confronted with the witness against him,” Justice Scalia contended that the confrontation means “face-to-face, not watching from another room.” He then concluded that the majority’s decision undermined the democratic authority of the Constitution by obliterating an important right the framers sought to protect.

However, Justice Scalia’s contention that the judges should always resolve the current constitutional issues by looking into the “original” meaning of the text is based on the questionable assumption that the framers knew exactly what kind of democracy they wanted. Given the brevity of the Constitution, however, I cannot but question the validity of this premise. Even though the framers agreed in general on what kind of government was to be established, nothing in the Constitution or the historical accounts of the founding suggests that they agreed on the detailed and specific application of these principles. In the case of Maryland v. Craig, even though the framers agreed on the general principle that the alleged criminal ought to have a right to be presented with any evidence against him and challenge the grounds of his conviction, they never agreed that, even when advances in technology could enable a frightened young victim of sexual abuse to testify without being terrorized again by the sight of her rapist, such accommodation ought to be denied. Because the framers could not have possibly foreseen the specifics of this case—particularly the role played by technology—it is absurd to conclude that the framers originally understood the Constitution in the same way as Justice Scalia.

Furthermore, I object to Justice Scalia’s “fixed meaning” thesis on the ground that such theory impedes national conversations for better and more sophisticated understanding of the Constitution. Indeed, Justice Scalia, who believes that “originalism” is the only correct approach to interpreting the Constitution, would deny the need to search for such better understanding. As such, his aim is not only to reject all existing competing interpretations of the Constitution, but also to preempt the development of new legal understanding. Even though Justice Scalia is at complete liberty to make his view known to the public, I believe his assertion is fundamentally at odds with the underlying premise of our constitutional democracy—that we, the people, ferret out the democratic truth as we go along and through this process give real meaning to the principles we uphold. Indeed, in our democracy, no idea deserves the name of the truth unless approved by the people in a free and unfettered competition of ideas. And there is no exception when it comes to the Constitutional understanding. Justice Scalia’s idea is one of many interpretations of the Constitution and I deny his claim that his has a special status in the American jurisprudence. And his attempt to obstruct national dialogues for better understanding of the Constitution is simply despicable.

I am not at all suggesting that the judges are not bound by the words of the Constitution or that they can change the Constitution however they wish. I completely agree with Justice Scalia that judges ought not to refashion the Constitution in order to serve particular contemporary urgencies or to impose their “juster” will on the rest of the society. Indeed, “in a constitutional democracy ‘a deep-seated conviction on the part of the people . . . is entitled to great respect,’” as Justice Breyer once stated in his book Active Liberty: Interpreting Our Democratic Constitution. In a sense, I am committed to originalism just like Justice Scalia. But if originalism is this broad—a respect for the conviction of the people—then almost everyone is an originalist. If, however, what he means by originalism goes beyond this, the democratic justification of his theory begins to contradict itself, making this democracy a government governed by “we the people of 1787” instead of by “we the People” currently living in America. Even worse, I suspect that “we the people of 1787” that Justice Scalia had constantly evoked to justify his decision, might in actuality be nothing more than his intellectual construct. The people in Justice Scalia’s mind probably never existed.

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  • Marcus Biggs

    Excellent, I couldn’t agree more, especially at this key moment in history. All hail to the power of the people in 2012!