A Conversation on the Constitution: Judicial Interpretation
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A Conversation on the Constitution: Judicial Interpretation

September 10, 2019

FS: This video is a
project of the Annenberg Foundation Trust
at Sunnylands. ♪ MUSIC ♪ STUDENT: What are some of the
different approaches the Supreme Court justices
use to interpret the Constitution? And what
are the advantages and disadvantages of each? JUSTICE SCALIA: If you’re asking
about fundamental method of interpretation, I think
you’re asking about the major division, not just between
the justices on the Court, but in American
jurisprudence generally. That is, there are
those who think that the Constitution is to be
interpreted in such a way as to keep it up to date.
That is to say … it does not mean today what it
meant when it was adopted. Some of its provisions
change in order to keep up with the times. My friend
Justice Breyer has that view. The other view,
which is held by people who are called
Originalists, and I’m one of them, is
that the Constitution doesn’t change. If
you want to change it, there is an amendment
provision. Amend it. It’s not up to the Supreme
Court to write a new Constitution by deciding
that things that never were there all of a sudden
are there. I’m putting it rather tendentiously I
think. But those are the two … basic approaches,
the evolutionary approach or the approach that, …
in 1791 … What is 1791? Why is that a significant
date for the Constitution? STUDENT: I believe in 1791
the Bill of Rights was created. JUSTICE
SCALIA: Right on the nose. STUDENT: Thank you.
JUSTICE SCALIA: Anyway, as I started to say, an
Originalist would say, look. When the Eighth
Amendment was adopted in 1791, the Eighth Amendment
prohibits cruel and unusual punishments, the
death penalty was not a cruel and unusual
punishment. There’s no doubt that it wasn’t.
The death penalty was a penalty for every felony.
It was the definition of a felony, a crime
punishable by death. So, it’s easy for me to say
the death penalty may be a very bad idea. People
don’t have to have it. If they don’t like it, they
can abolish it. But don’t come to me and say that
the Constitution doesn’t permit it.
Because in 1791, when the people voted to
prohibit cruel and unusual punishments, they didn’t
… this is not what they were talking about. Okay?
That’s an Originalist approach. I take no view
on … whether the death penalty is a good idea
or a bad idea. But if the people don’t want it,
they’re fully able to abolish it … by legislation. JUSTICE BREYER: It’s not quite
the people who perhaps don’t hold this Originalist view
who say the meaning of the Constitution changes. I
think there’s a large area of agreement. For example,
it says two Senators. Now, I don’t care how desirable
it is to have six or to have none. Two means two.
It meant two in the year minus 1500. It will mean
two in the year 10,000. But I think Justice
Scalia will also agree that words, in the
commerce clause for example, which says that
Congress has the power to regulate interstate and
foreign commerce or words of the First Amendment,
Congress shall pass no law abridging the freedom
of speech. What is the freedom of speech? What is
interstate commerce? There were no
automobiles in 1781, ’81, ’91. JUSTICE
SCALIA: Ninety-one. JUSTICE BREYER: Eighty-nine.
Eighty-seven. You pick your year. JUSTICE
SCALIA: Eighty. JUSTICE BREYER: There were no
automobiles at that time. JUSTICE SCALIA: Eighty-nine
for the commerce clause. JUSTICE BREYER: And they
didn’t even have Internet. They didn’t even have
television. So I think probably we both agree
that even though there was no such thing
in 1789, ’91, whatever year
you want there, still this phrase applies.
The world has changed. Now, here is the area
of disagreement. JUSTICE SCALIA: Wait, wait,
wait. Before you go on. Before you go on. That’s not
really giving the words a new meaning. It’s just
saying that new phenomena have come into being which
are embraced within the former meaning. It’s
quite something different, however, to say that the
death penalty which did exist then, the people
knew what it was. And the people did not vote to
abolish it when they adopted the Eighth
Amendment. It’s quite something different to say
it is now covered by the Eighth Amendment. It’s not
a new phenomenon. Anyway, go on. JUSTICE BREYER: Now, we’re
getting to a part which is actually rather difficult.
Because I will probably think to myself, whether I say it or
not, in many of these cases I will think, well, how do I
know the way in which the First Amendment applies
to cable television? For example, to take a real
case from many years ago, when Congress passed a
law that said that cable television owners must
devote some of their space to carry over the
air broadcasters, even though they don’t
want to. How does that fall within the First
Amendment? So when I get into these real cases, I
probably will say what’s key is there was a value,
there was an objective, phrased in quite
general terms, that existed in 1789 and
exists … and ’91 … and exists in unchanged
form today. The value, the basic purpose, the
objective. And then I will look to see how that
applies. So to go to a real case where in fact
the Court held that the cruel and unusual
punishment clause forbids the execution of those who
commit a serious crime of murder, for example, under
the age of 18. We said they couldn’t be executed.
It was not the fact that in 1791, probably there
were executions of 17 year olds. I’m sure there
were. But the value that underlies the cruel and
unusual punishment clause, is it cruel? Is it
unusual? Those things look around today to see how
society today works out what is cruel, what is
unusual. And society there may have changed. It’s not
the values that changed. It is the nature of
society that’s changed. And the fact … JUSTICE
SCALIA: You picked a bad case. Because in fact …
JUSTICE BREYER: Bad for who? For you or for me?
Otherwise, you wouldn’t have brought it up. JUSTICE SCALIA:
I wouldn’t have brought it up. JUSTICE BREYER: That’s right. JUSTICE SCALIA: The
majority of the states that had the death penalty
permitted it for someone who committed the crime
when he was under 18. But it didn’t make any
difference to the Court. The Court, being an
Evolutionist Court, just said we think that
you shouldn’t be able to execute anybody who was
under the … age of 18. Now again, I take no
position on the merits of it. Maybe you shouldn’t
be able to. But the people are able to pass their own
laws and abolish it. And it doesn’t seem to me it
ought to be up to five out of nine lawyers on
this Court to say coast-to-coast, you
can’t execute anybody who committed a crime when he
was under 18. The people … never voted for that
limitation upon democracy. And that’s what happens
whenever you … impose a Constitutional limitation,
mostly from the Bill of Rights. What always
happens is you are imposing a limitation on
democracy. You are telling the people you can’t do
what you want to do. And my position is unless the
people themselves voted that limitation
upon democracy, it’s up to them. JUSTICE
BREYER: And … so when you get us together, we
find at least three things that the other person says
which is very interesting and four that we disagree
with. That is … the point here to the subtlety
of this view where you look to conditions really
in the world in light of the value is that it is
complicated and subtle. For example, there are a
large number of states that did have on the books
statutes that said you can … you can … execute
someone under the age of 18, say a 17 year old. But
if you look at the number of states where such
executions occurred, there were virtually none,
very few. Very few. And then if you looked around
the world … and this was very controversial whether
you should say this. But if you looked
around the world, we were the only country
in the world indeed in practice that did such a
thing. Is that relevant? Well, you know what the
framers said about whether it’s relevant? What do you
think they said? Nothing. They told us nothing about
it. And if you look to see what they did, sometimes
they looked abroad to certain places. Sometimes
they didn’t. Hence, there is ground for
disagreement. One other point, and that is in
respect to the question of leaving things up to
the elected branches, neither the Originalist’s
view nor the view of what I’d call more flexible.
Let’s call it … evolutionary sounds a
little odd. Let’s call it … what shall we call it?
I want some positive thing here. What about concern
with the conditions of life? What
about that? Well, in any case, you see
what it is. It’s hard to predict which view will
lead to greater freedom for the electorate to
change things. I cannot resist pointing out
that if you look at the numbers, probably I
have been more willing in Constitutional cases to
allow the electorate to choose matters for
themselves than some of those who hold the
Originalist’s view. So that’s a wash. JUSTICE SCALIA: Oh, I … I
doubt that. But the question is who made you king? I mean, the
world has changed. But who placed it in your hands
to change our Constitution the way you think it ought
to be changed in order to account for these changes?
The people can do that. They can abolish the death
penalty under 17. And as for the notion,
well, they had it, but it’s very rarely used.
It’s also very rarely used to execute women. Now, are
you going to abolish … is that the next case
we have? You’re going to abolish the death penalty
for women because it’s very rarely used?
Of course not. JUSTICE BREYER: I never discuss
a case that hasn’t arisen. The interest
here is, of course, I don’t believe that I’m
changing the Constitution. I believe what I’m doing
is taking the unchanging value and applying it to
the circumstance today. And the reason I don’t
think it helps one side or the other in this
debate to appeal to the importance of democracy
is that both groups of people, in the
judicial world, in the academic
world, believe that this Constitution is basically
about democracy. It basically sets up a
system so that the people themselves, through
the democratic process, can decide what to do. It
doesn’t give us the power to be kings. But it does
… give us the power to patrol the
boundaries. Now, those boundaries are
interested among other things in
protecting individuals, minorities, others,
from the tyranny of the majority. And what
Hamilton thought and Madison thought is that it
would help in that respect for a group of unelected
judges sometimes to be able to say when, for
reasons that they write down, an action by the
majority is in violation, is a kind of tyranny,
does interfere with those rights. That’s where we
get the power. And we don’t always exercise the
power in ways that command unanimity in this Court.
JUSTICE SCALIA: Hamilton would jump out of his skin
if he thought that the Constitution that he
supported allowed nine unelected judges to
change the meaning of the document from year to
year. And as for the fact that the evolutionary view
is a defender of … a defender of democracy?
Every time we make a Bill of Rights decision, it
is an anti-democratic decision. The only thing
that enables us to do that is that the people
themselves authorized us to make that decision. The
people themselves said you can’t quarter
troops in homes, even if the majority wants
to. The people themselves said you cannot suppress
freedom of religion, even if the majority wants
to. The people said those things. But
they never said, for example, to take
… to take what here in Washington is called the
Big A. They never said a state cannot place
limitations upon abortion. Now, there … are views
on both sides of that. And once again, I’m, you know
… I’m officially neutral as to which view is the
right one. But do not pretend that it is not a
limitation upon democracy for the Supreme Court
to say the people cannot place limitations on
abortion even if they want to. That’s a limitation
on democracy. JUSTICE BREYER: We had a case,
which I’m trying to get away from such a controversial
issue as death penalty… JUSTICE SCALIA: Well, the
controversial issues are the better ones. JUSTICE BREYER: No, but, I
mean, this is controversial. JUSTICE SCALIA: They’re
the ones that … get the blood flowing. You
see what’s at issue. JUSTICE BREYER: … This is the
kind of thing that’s more often at issue. There’s a clause in
the Constitution that says you cannot have an ex
post facto law. Now, what’s that? You
know, good. What? STUDENT: When you charge a
person with a crime that they committed before
it became law. JUSTICE BREYER: Absolutely. Here
we have the following case. California passes a
statute that makes it a crime … which has
always been a crime, a certain awful thing
involving molesting children. But what it does
in this statute is it says the statutes of
limitations … you know, you can’t prosecute a
person … in many crimes after a certain period
of time expires. That’s a statute of limitations.
It used to be three years. That was the statute
of limitations for this crime. Three years expire.
Twenty more years went by. Twenty more years. Then
they pass a new statute. And they say we extend
the statute of limitations backwards. And they charge
someone a quarter of a century after the incident
that … they said was the crime. And about 20
years after the statute of limitations had expired.
Is that an ex post facto clause
violation or not? Now, that’s a hard question. So
one group of people on the first method will look
into the history. I’ll tell you one thing about
the history. The history requires the Court to look
at what a judge in the early 19th century wrote
about an 18th century treatise writer called
Blackstone who was writing about an incident that
happened in the British Civil Wars involving
imprisonment in the middle of the 17th century. Now,
I say if that’s the kind of thing that we have
to look to all the time, you better select an
historian to be a judge. Because I am not an
historian. And I’m the first one to admit I know
virtually nothing about that. And in that
particular incident, well, the historians
disagreed about what it all meant. I’d say the
value laden method tries to identify the values
that underlie the ex post facto clause. It says, why
do we have such a clause? What are we trying to
prevent? What kinds of unfairness? That’s what
they’re interested in. And then see if you can
apply that to the modern circumstance. That isn’t
changing the meaning of the Constitution. It is
applying the Constitution. It’s emphasizing different
kinds of sources when you try to identify that
meaning. And by the way, you can look it up. See in
recent times which method has set aside the people’s
democratic action the more? I happen to know the
answer to my question. And I wouldn’t bring it up if
it didn’t favor my side. In other words, less. In
other words. So I think … JUSTICE SCALIA: You
misunderstand me. I have no qualms about
setting aside the people’s democratic action.
the time when the Bill of Rights requires me to
do it. That’s my oath of office. I only object
to setting it aside when there is no sanction in
the Constitution adopted by the people to do that.
And you pick an instance in which the history is
not that clear. There are innumerable instances,
especially in the most controversial areas such
as abortion and others, where the history …
and the death penalty … where the history is
entirely clear. And if you think that the values
approach is always clear, the values that you think
are the more important are not necessarily the values
that I think are the more important. What you think
the ex post facto clause was intended to protect
against may not be what I think it was intended to
protect against. I might think, oh, my goodness.
It’s a terrible retro change to all of a sudden
make him guilty when he was free of that crime for
twenty years. On the other hand, you may say, oh, the
only thing it was really meant to do was to make
sure that an act which was lawful at one time is
not later made unlawful. Either one of those is
entirely reasonable. So don’t pretend that the
values thing provides an easy answer. It provides
an answer that the people ought to decide. The
people know values. … I’m a good lawyer … I
presumably was appointed on the Court because I’m a
good lawyer. Not because I know more about the values
of the ex post facto clause. Or whether
there ought to be a death penalty. Or whether there
ought to be a right to abortion. I don’t know any
more about those things than you do. That’s not
why I was appointed. I am a good lawyer. And I can
read the text. And I can look back and see what
the text meant when it was adopted. In some cases,
it’s vague. But … the cases in which it is vague
in significant areas are going to be much, much
fewer than the cases in which the values that you
want to pursue are values that different segments of
the American people will disagree about considerably. JUSTICE BREYER: But why I think
this is important … What Justice Scalia just said
is he’s really identified sources of differences
where I think there is no right and wrong. That is
when I think of it in my mind, I think you’re a
lawyer or a judge or a person reading a document.
And there are words in it. And now for a
lawyer or a judge, we often come across
words in statutes, we come across words
in the Constitution, that don’t define
themselves. And there’s always two arguments on
both sides. We’re the border patrol. We
patrol the borders of the Constitution. And I cannot
tell you how often in these cases there are
two sides to the argument. There are. If not
six sides. All right, so how do you
decide? Well, I think, to go back to
really sort of basics, that a judge when faced
with words that you just don’t know in a
difficult case, has six tools to look at.
He reads the words. Do the words matter? Of course.
And he reads other nearby words. Second, he looks
at the history. Of course, you should look at that.
It may tell you something interesting. Third, he
looks at the traditions. What are the traditions
surrounding this word that have grown up? Fourth,
read the precedent. Read the precedent. Fifth, look
at the purpose. And that’s what we’re talking about,
purpose or value. And finally, look at the
consequences of deciding one way or the other. Not
any old consequence in the world, but consequences
that have to do with the purpose. If it’s
a speech case, it’s speech consequences
that matter. A privacy case, unreasonable
search, it’s the privacy unreasonable
search consequences, all right? So I think
those six tools — text, history,
tradition, precedent, purpose or values and
consequences — are relevant to every judge.
And if you are going to say no, I’ll find
cases where you’ve
actually looked at them. JUSTICE
SCALIA: I wasn’t going to say no. I was going to
say that four of those six factors came out the other
way in the … 17-year-old execution case …
voted for. Four of the six came out the other way.
But essentially, you thought it was a good
idea not to execute 17 year olds. JUSTICE
BREYER: Now we’re at the difference.
Because I think, in my characterization
of the Originalist view, a lot of weight is put
on those four. That if possible, we’d like
them always to predict the answer. And maybe
sometimes it isn’t. But that would be the ideal.
And the closer you can come to that, the
better. In my view, those factors don’t very
often give you the answer. I’m not against using
them. But I think they don’t really give you the
answer all that much. And therefore, I look quite a
lot to purposes or values and consequences. And
the danger of my approach, which you just
heard iterated, is that I would substitute
my view of what’s good for what the Constitution is
about. So I have to take care not to do that. So I
write down my reasons very carefully so others can
criticize. And amazingly enough, they do criticize.
And the danger the other way is, in my view, we
separate the law and the constitution from life.
Too rigid. It’s got to be, if it’s going to be
lived for a 1,000 years, brought down to the
life of people today. Which means you have to
look how these values are applied to today’s
circumstances. JUSTICE SCALIA: Danger?
are implementers of values, not good lawyers, they
ought to be elected. Or at least you
should select them, and you’re seeing it
happen in the confirmation process. I don’t know
whether you know it. They’ve become very
controversial. Because the people are not fools.
And they have come to recognize that in the
last 20 years or so, things have
changed. That in fact, we have a Supreme Court
that believes mostly in an evolutionary Constitution.
And they are effectively changing the meaning of it
from … decade to decade. Well, if that’s
what they’re doing, then it’s not so important
whether this nominee is in fact a good lawyer,
an honest person, has a modicum of judicial
temperament. I mean, that’s nice. But that’s
not the most important thing. The most important
thing is I want to put somebody on the Court who
has my values. Who wants to allow abortion or
prohibit abortion. Who wants to allow the
execution of 17 year olds or forbid it. And that’s
what’s happening. We’re having a mini
Constitutional convention every time we nominate and
… confirm a new justice. That’s not the way it
was supposed to be. These justices were supposed to
be lawyers who like other lawyers interpreting the
text of a statute look at the words and what was it
understood to mean by the legislature that adopted
it. And once you go beyond that, you convert what was
a … lawyerly institution into a political
institution. And when the people realize that,
they’re going to treat it accordingly. That’s
what’s happening in the confirmation
process. It’s very sad, … but inevitable I think. JUSTICE BREYER: I will say we
should get another question. So I’m going to save
my “absolutely, but I see the other side
of that one” until we get another question. And
then I’ll work it in. ♪ MUSIC ♪ STUDENT: My question
is with the variety of theories of Constitutional
interpretation utilized in the judicial process from
the originalist to the developmentalist approach,
how does the Supreme Court ensure that rulings
are fair and uniform? JUSTICE SCALIA: We
count the votes. JUSTICE BREYER: No,
that’s not … JUSTICE SCALIA: No, I mean, how
do we ensure that it’s fair and uniform? Look … we don’t
debate the things that my friend Justice Breyer and
I have been talking about today. We don’t debate
them in conference. I mean, I’m not going to
persuade him. And he’s not going to persuade me.
We’ve both thought about these things for a long
time. And he will continue to apply … his
interpretation of the Constitution to the
decision of a case. And I will continue to apply mine.
And then you count the votes. JUSTICE BREYER: But
it’s not just that … I mean, it’s
partly. But, you see, I don’t start out with a
particular view. I think you start out with a case.
And we’re trying to find the right answer to the
case. And if I try to give some form of coherence to
an approach that I have, it’s only after looking
at a lot of cases that I decided that I think that
something arises out of that … And I think
what Justice Scalia says, for example, about the
problem of values coming into the opinion, the
values of the judges, it’s true that it’s a
problem. But we have a Constitution
that was designed, particularly
after the Civil War, to protect the individual
rights of unpopular people. And think of Brown
itself. If you’ve gone back and looked
totally at history, well, maybe they would
have said schools at the time were segregated.
And they passed the 13th, 14th and 15th amendments.
But if we looked at the objective of the provision
in the Constitution, which was to take people
who had been formerly slaves and they and their
children and others would be just like
everybody else, part of American society.
And that was the objective of this. That was the
dream. That was the hope that that’s what they’re
trying to do. And in 1954, all you had to do was open
your eyes and look. And anyone who opened his eyes
and looked in the South would have said … and
not just in the South either … would have
said this is completely contrary to what
this thing is about. JUSTICE SCALIA: And it was
the same in 1878 or whatever the date was when
Plessy versus Ferguson was decided. Which interpreted
the text … and I start with text … which said
that no state shall deny any of its citizens equal
protection of the laws. Said that you could
require black citizens to ride … require them
… to ride in a separate railroad car. That …
was wrong. And that … relates to this other
question. It was wrong when it was decided.
JUSTICE BREYER: But it would have been
particularly wrong if they’d seen what was
going to happen. JUSTICE SCALIA: One of my
favorite sayings about the Court … I don’t want to
encourage disrespect … but sometimes we get it wrong.
I occupy the seat that used to be held
by Robert Jackson, one of my favorite Supreme
Court Justices. And one of his … was it concurrence
or dissent? I think it was concurrence in a case. He
wrote … “my brethren” … in those days, there
were only men on the Court … “my brethren sometimes
forget that we are not the Court of last resort
because we are always right. We are always right
because we are the Court of last resort.” And we’ve
made mistakes. And we try not to. And I admire
enormously the efforts of my colleagues to come
out the right way by their lights. And I do by
my lights. JUSTICE BREYER: And that’s
a very important … JUSTICE SCALIA: I think we
get it right, what? Ninety-five
percent of the time? JUSTICE BREYER: We’re unanimous
probably 20 to 30 percent. JUSTICE SCALIA: And the
other 5 percent, I’m right. JUSTICE BREYER: You’re always
right except when you said that. JUSTICE BREYER: That is
really worth underlining seven times.
Because in reality, five fours are about 20
to 30 percent of the time. That’s true.
It’s not always the same five and the same four.
And the way we approach the cases is we’re trying
to decide this case. And I love it when all the
historical factors, the textual factors, the
purposive factors and look at the Constitution, all
lines up the same way. Even if it’s very close.
But they’re all lining up the same way. I think
great. And probably we will achieve
agreement on that. And, of course, if sometimes
they don’t all line up the same way, I say, well, we
may not achieve agreement on this. But maybe we
will. You never know. And we have a discussion about
it. And we try to get to agreement. And then
sometimes you don’t get there. That’s not because
one side is obviously right or obviously wrong
on any set of terms. And that happens over and over
and over. So you have to keep that in mind
when you read all these controversies. We’re
talking about the border patrol. The area between
the borders is vast. That’s where people
make their democratic decisions. When you
get to these boundaries, you have some cases that
are so difficult … and he’s brought up,
Justice Scalia, about two or three of
the most. And people have disagreements about that.
There we are. And each approach has I think some
problems with it. None is perfect. And there we
are. JUSTICE SCALIA: Don’t think that because we have
profound disagreements … I mean profound
disagreements, and sometimes express them
in … what should I say? Passionate language in
dissents. Don’t think that we are not a congenial
group. Believe it or not, sometimes the press
paints us as, you know, we’re at each
other’s throats. Nine scorpions in a
bottle or something, you know. That’s not
the case at all. In fact, we’re a very … my best
friend on the Court is … Ruth Bader Ginsburg
… because I’ve been a colleague of hers since
we were on the Court of Appeals together in 1982.
And God knows Ruth Bader Ginsburg and I do not
have the same judicial philosophy. But it has
nothing to do with whether we’re friends and
respect each other and, and can conduct our
business in … a congenial fashion.
you cannot disagree without taking it personally, you
should look for another day job. You are not,
you were not meant to be a judge. JUSTICE BREYER: And
there’s a deep reason for that. The document
that you’ve read, the Constitution, says
we’re a nation under law. And that means we’ll
decide things through reason under law rather
than fighting each other in the streets. I’ve never
heard a voice raised in anger really in that
conference room or people making insulting remarks
about each other. We resolve our differences
where they are great, and sometimes they are, by
listening and speaking in a reasonable way. And if
I’m not going to convince somebody that way, I’m
certainly not going to convince them by raising
my voice. But that’s the system the Constitution
sets up. And I’m glad that it does. JUSTICE
BREYER: Thank you. ♪ MUSIC ♪

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