Justice Scalia - Inconsistent on the 8th and 14th Amendment

I have been thinking a lot about Justice Scalia since the 60 Minute interview and the thread on the interview. I started a different thread on his view quetsion begging view of the 14th Amendment. I linked it below, but briefly Justice Scalia says that we should not look to the how the 14th Amendment was understood at the time it was passed (the same Congress funded segregated school, set up special programs for blacks), but we should only look at the text because the text is clear. But with the 8th Amendment, he does argue that we should look at the understanding at the time.

I do see why the text of the phrase “No State shall […] deny to any person within its jurisdiction the equal protection of the laws” is so clear that we should ignore the understanding at the time, but the text of the phrase “nor cruel and unusual punishments inflicted” is so different that to look not look beyond the text to understanding at the time is unprincipled usurpation of the legaslative power by the Supreme Court.

Does Justice Scalia have a principled reason for looking at 14th and 8th amendments in such different ways?

I can think of one. The term “cruel & unusual punishment” is a bit more ambiguous then “equal protection.” Jurists, Scalia seems to opinine, must ask themselves what Madison et al meant when they chose that particular words. Since there was capital punishment at that time–punishment which had a fair chance of causing some pain to the victim–Scalia would argue that the Founders did not intend the 8th Amendment to prohibit capital punishment.

We’ve beaten this horse to death in the thread on the 8th amendment and torture.

“Cruel and unusual punishment” was a phrase of art, used by the Bill of Rights of 1689. It thus had a specific meaning already in place when it was lifted from that document and put into the Bill of Rights of 1791, which after passage by Congress and ratification by the states, became amendments 1 - 10 (and now amendment 27). Thus, it should be interpreted in that light. This is why every decision of the Supreme Court on the subject has begun there to figure out what to do, rather than looking to the modern day meaning of “cruel and unusual punishment.”

“Equal protection of the laws” was not a phrase that had a prior history. It was language that was created for the Fourteenth Amendment. The history of the legislation does not make clear that there ever was any consensus among the various legislators involved as to what the phrase was intended to mean. As the Congressional Research Service for the Library of Congress stated in its Analysis and Interpretation of the United States Constitution, Fourteenth Amendment (warning, BIG pdf!),

See page 1905.

In addressing the phrase, the Supreme Court realized early on that it couldn’t mean that states couldn’t pass laws that treat one person differently from another. After all, a law that makes it illegal to murder someone, and punishes those who do, treats murderers differently from non-murderers. So over the years, the Court has had to try and come up with a formulation that applies to the words. There have been several interpretations utilized. But none of them can be said to be what the words originally “meant” at the time of passage because they didn’t HAVE a definitive meaning in law.

In this absence of meaning, Scalia proposes that the text means what it says. That is, that “any person” means just that, ANY person. Not: any person (who happens to be otherwise disadvantaged in our society). ANY person. It doesn’t matter that I’m white, black, or pink with purple polka-dots. I can’t be denied equal protection of the laws.

Now, if the phrase had had a prior meaning, if, like “cruel and unusual punishment” it wasn’t just being used de novo by the authors of the amendment, then no doubt Scalia would insist upon usage of that meaning as the starting point for interpretation. What he refuses to do, however, in the absence of such history, is try to adopt some purported “meaning” for the phrase which cannot be imputed to ALL the people who both voted for the amendment and ratified it. After all, that’s a hell of a lot of people involved, and it involves those who were not in the Congress of the time, so even the actions of Congress roughly simultaneous to the amendment’s passage are not sufficient to show what was “meant” by the amendment, to say nothing of the fact that two-thirds of Congress had to pass the amendment, but only a majority of each house had to pass the legislation.

I’m not saying it’s how I would interpret the amendments, but I am saying it is not inconsistent in approach. Justice Scalia’s faults as a Supreme Court Justice cannot be laid to being inconsistent, a picker and chooser of argument to support an outcome. Lay that lable on Chief Justice Roberts, if you like, but not on Justice Scalia.

Justice Scalia - Incontinent on the 8th and 14th Amendment

So he literally is shitting all over the Constitution?

Correct. Roberts, Alito to a lesser extent, Thomas to a greater extent, are all “reliably conservative” – they decide on the result and then figure out what reasoning they wish to use to get there. I rarely disagree with their results, but I sometimes wince at their methods.

Ginsburg, Souter, Stevens, Breyer are reliably liberal (to varying degrees, of course). They decide on the result and then figure out what reasoning they wish to use to get there. I often disagree with their results, and I often wince at their methods.

Scalia is not inconsistent. Undoubtedly he is personally conservative, but what his critics seem utterly blind to are the times he’s joined the liberal wing in a concurrence that contains some variance of, “I don’t approve of this result, but…” He has a method, the method is consistent, and where it takes him, it takes him. Period. Often it takes him to a conservative result. Sometimes it has him joining Ginsburg. But it’s NEVER result-driven.

Good point. (Although I’d put Breyer as more a moderate, “liberal” only by comparison with strong conservatives.) My impression is that Kennedy too is, by and large, method-oriented, but his judicial philosophy is more akin to Living Constitutionalism than to Originalism or Textualism in any of their variants. Thgis ios why he’s often a surprise, coming down strongly left on human rights cases, and allied with the right on several other issues. Does that accord with your perception?

I didn’t mention Kennedy because I think he’s tougher to characterize. I don’t think he’s results-oriented; I think that if Living Constitutionalism can be said to be divorced from being results-oriented, he’s the guy to prove it can be done.

I think in 2000, they all proved how results oriented they are by the 4 liberals talking about states rights, and the other 5 talking about how the 14th amendment should apply to a Presidential candidate.

I’ve always found Thomas to be the most consistent. Could Bricker please link to a case where he feels that Thomas reached a conservative result but used a suspect reason? Other than Bush v. Gore?

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

If difference is that the 8th used a legal term of art that was in use at the time of its adoption (and had a long history to it prior to that) and the 14th used new language, what about Justice Scalia’s jurisprudence on the 1st Amendment? Is the phrase “prohibiting the free exercise [of religion]” a legal term of art that was in use at the time of it adoption? Or how about “respecting an establishment of religion”? Or “abridging the freedom of speech”? Justice Scalia looks to the way these textual phrases were understood at the time of their adoption, and I am not aware of them being legal terms of art with long histories prior to their adoption.

What cases are you thinking of, specifically, to form the conclusions you offer above?

I am not thinking of cases, but of what Justice Scalia wrote in his book, A Matter of Interpretation: Federal Courts and the Law. Professor Laurence Tribe says that Justice Scalia should read the 1st Amendment’s provision on freedom of speech as “aspirational.” Justice Scalia draws a contrast to the “phrase all men are created” (in the Bill of Rights) and says the freedom of speech clause should be read as a guarantee of the “then extant speech rights of Englishmen.” The fuller context of the discussion of “aspirational” clauses makes it clear that Justice Scalia thinks the whole of the 1st Amendment should be read as locking in the understanding held when it was passed. I think the link below should go to a part of Justice Scalia’s response. Google only has a limited preview and I do not want to re-type pages of text.


The bolded text in particular represents the same approach Justice Scalia rejects in interpreting the equal protection clause. That makes sense since he reads the equal protection clause as aspirational and the 1st Amendment (including the establishment clause) as locking in the understanding at the time of its adoption.

I do see what the principled reason is for reading 14th Amendment as aspirational (at least the equal protection clause) as aspirational, but not reading the 1st Amendment as aspirational.

I do not know if “aspirational” is the word Justice Scalia would use for his reading the 14th, but that is clearly his approach.

Maybe I’m remembering my Con. Law wrong, but didn’t Scalia vote in the majority on both Lopez and Gonzalez? That struck me at the time as being contradictory and result driven in that conservatives oppose gun control and favor drug control.

That aside, I agree with the overall point of your post.

In Scalia’s concurrence in Gonzalez v. Raich, he argues that the two decisions weren’t contradictory.

The gist seems to be that Lopez and Morrison limited Congress’s ability to “pile inference upon inference” in claiming that some local activity affects interstate commerce, but that they didn’t limit Congress’s power to regulate intrastate activity as part of a broader program of regulation of interstate commerce.

In other words, he’s saying that Congress can regulate local drug production in conjunction with regulating interstate drug traffic . . . whereas it couldn’t regulate possession of a firearm in a school district just based on some attenuated effect this might have on interstate commerce.

Personally, I don’t particularly care for the results in these cases, but I can see how that’s a fair distinction to draw.

Ahh, you’re right, I mistakenly conflated his position with that of the majority opinion.

I’ve read these Supreme Court threads with interest, but haven’t yet seen fit to but in and posit my 2 cents on Scalia’s judicial philosophy. But I have to say that, in my opinion, “textualism” or “originalism” is, at best disingenuous.

If we are only supposed to look at the original intent of the words being written, we are left with a woefully stagnant constitution, being only 7 pages in length, which needs to be constantly amended to reflect the constant change of society.

For example, I’m damn near certain that the writers of the 1st amendment didn’t intend for speech to apply to communication over the telephone, radio, television, or the internet, insofar as they were writing before the invention of indoor plumbing. If we adopt an originalist approach to their writing, then, we have to conclude that the 1st amendment is silent on all speech except the spoken word, made face to face.

Similarly, the original meaning of interstate commerce didn’t consider airplanes. Does congress not have the power to regulate commerce that leaves one state and arrives at another via the air, simply because the writers of the constitution didn’t intend for this meaning to exist?

Or, if we can harken back to the 8th amendment (for just a second), are we to believe that, should the present government pass a new amendment that “re-affirmed the 8th amendment in its entirety”, suddenly the 8th amendment has changed meaning, merely because the understanding of cruel and unusual today is different than what it was in the 18th century?

I’m fairly confident that most people will say my examples are absurd. If you say that, then, you are conceeding the point that the meaning of words does change, and that we can’t merely apply the original meaning (especially when laws, amendments, constitutions, and the like are the products of groups of people, none of whom may have ever been in agreement as to the original meaning in the first place). At this point, then, we are arguing degrees of adaptation, not whether the words should be adapted at all.

Please understand, I am not particularly radical in my own interpretation of the constitution. Despite my own progressive bent, I would likely be the justice who writers a lot of opinions saying, “while I don’t agree with this, the law says…” I do not support “inventing” terms not actually present in the constitution (and, for this reason, I think that Roe v. Wade was wrongly decided, despite my own opinion as to the right of a woman to elect to have an abortion). But I do believe that we ought to be interpreting words based on their contemporary meaning, and not locking ourselves into some static concept that has long been abandoned in the world outside the courtroom (and, gasp, I even believe that foreign nations can provide persuasive precedent for how our words can be understood; this, I hasten to add, is not to say that we are ever bound by foreign ideas or decisions).

Scalia’s ideas about the 14th amendment, then, make sense to me. But, no matter how well understood in the 17th or 18th century, we should be similarly allowed to interpret government provisions regarding other matters in a modern light. To do otherwise invites a jurisprudence that loses its legitimacy, and risks a government to static to adapt to a society in flux.

And this is where I think Thomas was more consistent, being in the majority in Lopez and in the minority in Raich.

According to Scalia’s rationale, the federal government can’t prohibit firearms on school property, but if they simply prohibited firearms everywhere (2nd amendment aside) then the school zone prohibition would be legitimate as part and parcel of the whole prohibition. It seems a rather backwards “limitation” on power.

Playing devil’s advocate here (as I’ve said, I’m personally liberal so I don’t really care for the results of Scalia’s rulings in many cases):

Scalia might argue that the question in these cases wasn’t “How much power should the Federal government have?” but rather “Which powers belong to the Federal government and which to the States?” Saying “The Federal govenment has the power to ban guns [ignoring the Second Amendment for the purposes of this example], but with guns being legal only the States have the power to decide whether you can take them into school zones” doesn’t really limit the overall power of the Federal government, but it does differentiate between the ways the Federal government can exercise its power and the ways the States can exercise their power.

As I understand it, Scalia is less concerned with what the “intent” of the words was than with how their meaning would have been understood at the time. That is, it doesn’t matter whether the authors of the Bill of Rights imagined new media for speech when they wrote the First Amendment (although for all I know, they may well have intended that it would apply to any new technologies for communicating speech, even if they couldn’t forsee the form these technologies would take). Scalia would presumably defend the extension of free speech to, say, message board postings, by arguing that a reasonable person at the time the First Amendment was written would have understood “speech” as used in the context of the First Amendment to mean “communication of ideas”, not just literal speech.

Whether this is (a) the most reasonable way to interpret the Constitution, or (b) the one that produces the best results is of course another question.