The Supreme Court Historical Society hosting an awesome, and sold-out event on March 23, featuring a conversation between Justice Scalia and Justice Breyer on Original Intent and the Living Constitution. The following is a (near) transcript recorded by Corey Carpenter, who attended the debate tonight.
Moderator (James Duff): Does the public or media enter into the decision making process?
Breyer: We take that into account, however the ideal is 0 effect. Hamilton says that the judiciary should enforce the Constitution as it is stated.
Scalia: That’s why we have life tenure, so that we are not afraid to tell the truth. When your job is to tell people no, one should not always expect popularity.
M: Why tie current decision to the Framers?
S: I try to tie it to the people during the founding, not the framers. It’s not about original intent but original meaning. I do so because it depends on consent, which is what people agree to on adoption.
The Bill of Rights is anti-democratic in that it stops the majority from doing what they want, but it is also democratic in that the people made it.
For example, the 8th Amendment. No American voted to eliminate the death penalty when adopting the Amendment. We know this because back then, all felonies were death-eligible, it was by definition. To say it was off limits is just not the will of the people.
M: What does “We The People” matter?
B: As Justices, Scalia and I agree on lots of things, but the Supreme Court patrols the boundaries of the Constitution. It was intended to create a workable government, and our job is to apply its words to circumstances. These circumstances are at the difficult boundaries of the Constitution, or else, why would they be before this court. People disagree, and we both agree that the Constitution governs now and forever. How we get there is different. In any difficult case, we (1) look at the words of the text (2) look at the history (3) look at traditions behind it (4) check the precedents (5) the values behind it (6) consequences through the value lens. Scalia is more comfortable with 1-4 while I am happier with 5 and 6. I feel that it does a better job. I also feel that Scalia is afraid people like me would substitute subjective for objective judgment.
S: My problem is that it creates rights that people never voted for. “The Constitution is not an instrument of change. For change, all you need is a legislature and a ballot box. The Constitution is to impede change. You don’t need five out of nine justices to tell you if people don’t like the idea. Once something is declared unconstitutional, it is off the stage of democracy.” The Constitution is not flexible, it produces rigidity. People come to ask for new rights to exist forever (or change our minds) without a vote.
B: We do not create rights. Liberty in the 5th and 14th Amendments is not defined, and the 9th Amendment states that the Constitution is not limited to enumerated rights. We find conceived of changes. The Constitution is not static. We have the 8th Amendment. We originally thought that flogging in the military was good, but times change, and we found flogging to be cruel and unusual. The 14th Amendment was originally determined in good faith to mean separate, but equal. Later, we ended up with two societies, and one was put down, which was contrary to the 14th Amendment. We look through the lens of actual outcomes, not what was thought would happen.
S: Is he done?
As far as equal protection, example of sea change toward the Constitution by people and professors is relatively new. The 19th Amendment was added in 1920. Today it would be: “Why not ask the court to give women suffrage?” That is not what happened. No one thought the 14th Amendment applied to franchise on the basis of sex, literacy, etc. They changed it through amendment, not a court decision. Of course we don’t disagree on new technologies. We must apply the 1st Amendment to technology, but we do disagree on old debates: the death penalty, right to suicide, abortion. If the Bill of Rights changes, that destroys it, because it can cut both ways. We could also turn in the other direction. We may think flogging is good, and later think it is bad, but we could also think thumbscrews are bad, and later think they are good. This is why originalists fight to preserve criminal freedoms too.
B: I admit that it is a two-way change. In interpreting the Constitution, we look at basic values. These don’t change. We are not creating a new right, only applying values to new situations. Example: Congress passes a bill that says “All endangered species are protected.” A mink that was not endangered at time of passage later becomes endangered. We still think the statute applies, even though Congress might not have thought about that species of mink, because basic values apply. Another example: the Confrontation clause. An accuser must be able to be confronted in trial for evidence to be submitted, but what if it is for murder, and the witness is dead. This court looked at the history and didn’t let the evidence it in. I dissented because I looked at the basic value behind the clause.
S: Deciding based on purpose is manipulative. What is the purpose? Do good and avoid evil? Do I say what I think will do the most good? Living constitution gone wild. The confrontation clause 25 years ago only required that hearsay have an “indicia of reliability.” 10 years ago, we decided that the only “indicia of reliability” that matter was actual confrontation. No ambiguity there. Breyer chooses that which likes and leaves out what he doesn’t.
B: It is better to look at purpose than history. Purpose is easy to find while history is difficult. It is not manipulated. Joke: People are flying in a balloon in Maine, and they’re lost. They lower and ask a farmer where they are. He responds “You’re in a balloon.” Why is this joke funny? The response ignores context. History also ignores it, but purpose uses context which tells us how to use things. Purpose can be tough, but history is tougher. If purpose is found and explain, anyone who can read can comprehend the decision of the case.
S: That’s a new one from you I’ve never heard before. Judging is best when it is most accessible to the public? The media only shows results, for example, ERISA. No one compares about this and that subsection and clause, etc. They want to know who won, if it was the poor old widow or the big bad corporation. Take for example the Merchant of Venice [quotes section where Portia gives decision about ounce of flesh but cannot take a drop of blood]. It’s a bad decision, like saying you can have this wheat, but you can’t trespass on my land to come get it. In the story, this decision is lauded because the good guy wins, the bad guy loses, and everyone is happy! If people can read the decision is a bad standard for deciding what a good decision is.
You talk of purpose as easy. Due process says you cannot take life, liberty, and property without due process of law. Which means you have to give due process before you kill, jail, or fine someone. Liberty is easier by originalism in this sense. Due process doesn’t mean under no circumstance can we take it, it refers to procedural rights, not literal ones. What is the purpose of due process? A happy society?
B: If you haven’t thought about it before, I wish you would think about it.
Liberty cannot be limited to just prison…we don’t just think do “good.” Even Aquinas broke out what good means. Good is fulfilling Congress’s purpose. As long as we take purpose and intent and terms, we enable Congress….and people know who did it (good or bad) and can vote them out if they don’t like it. Once we leave purpose behind, it turns into “no he did!” “no, he did it!” “wait, the court did it!” I am only speaking in general
M: How do we determine purpose?
S: Beats me! We look at the text….the limitations are also purpose, but no one purpose is controlling. As the Massachusetts Constitution says, We are not governed by Congressional intent, but by the laws passed as written. It’s nice to know that freedom of press is guaranteed by due process….but the 1st Amendment means we cannot take freedom of press even with due process.
B: I speak generally, because by the time you finish an example, the audience is asleep. An example of what I’m talking about is when a parent sues a school for example about education….experts are needed and brought in. We are asked to interpret the word “costs” in the statute. Does it include expert costs? Read the statute 50 times, 100 times….doesn’t help, but lo and behold, there is a conference report that defined cost to include expert costs. Gee, that was easy…and I wrote so in the dissent.
S: Congress passes laws, not conference reports. Similar statutes did not include expert costs.
B: Another statute grants that when government officials have tort liability, the government pays, except for property by law enforcement and after a procedure. The question is if the prison guard is the same as a customs agent? A treatise writer found that the section of statute was based in English law, which specifically mentioned customs agents. This gives us a “workable Constitution.”
S: You think that both houses of Congress knew this obscure fact when passing the bill….No! This type of analysis only creates a cottage legislative history industry, in which these things are drafted and handed off to some senator to have read off, or given to some teenager to put in the report and not be voted on.
B: The President of Ford doesn’t do everything, he uses his staff as system of alert. It’s just a system of alert, like how departments make decisions. The staff works for the senator, the Senator does not need to read it all, nor should he have to, he just has a system of alert like everyone else. Even judges have clerks. They have some staff member answerable to the decision maker to bring things to their attention. I have nothing against teenagers, never saw any actually. A senator does not need to read all of everything…that would be unreasonable and inconsistent with reality. The staff is highly attuned to the senator, and I have no apologies for this point of view.
S: Comparing legislatures to departments is inaccurate, it’s more like the judiciary. The judge tells the clerk to draft the opinion, but the judge must still read and sign off on the opinion, the clerk’s words have no force of law or effect, but the decision power is not delegated…..A senator’s staff cannot vote, the Congressman must vote personally….could be clueless about what’s in the bill or even falling down drunk, but only must be there to vote. All the backroom stuff is just a distortion of the traditional legislative rule, which is what happens when you depend on things not voted on for purpose.
B: In order to vote on a bill, it must be written, but there is no requirement that Senators do it….the staff does that. Purpose avoids hardcore literalism, and reports and such give us that. One must learn to avoid abuses of that process and not use them, which is no harder than history
S: Let’s go back to the Constitution. The Roman Emperor Caligula was said to have posted his laws high, so that the people could not read them, and be fooled to obey them. Breyer has an exalted notion of legislative staff, which is not surprising given that he was one. Congress has to vote on the text, and that is the only thing committed to…even the President only signs the text.
B: I want to be clear about this: I am not Caligula nor am I a fan of Caligula. We encounter situations where it is less like reading the word helps, and more like “cost.”
S: I cannot and will never understand how abortion is protected by the text of the Constitution. Liberty means what the Supreme Court says it means, and that process is anti-democratic: once it is a right, we cannot vote about it. Oh no, we can’t sit around, discuss it, and vote democratically on things like abortion, the right to suicide, homosexuality, etc. and we must therefore use the Supreme Court.
B: The basic reason of purpose and values is to help at the fringes. I am comfortable with that, but Scalia is not. It is what many judges on daily basis enact, but they just leave the fringes for later….Scalia is uncomfortable with the uncertainty involved with the fringe of the Constitution.