At Bloomberg, Noah Feldman: Scalia’s Ghost Is Haunting Conservative Justices. From the introduction:
Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That’s scary because it could eventually block even state courts from stopping partisan cheating.
What’s most important about the issue, however, isn’t the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It’s the new kind of reasoning that the conservatives are using to reach their preferred result.
It’s a legal theory that departs from the method of constitutional interpretation favored by a generation of conservative legal thinkers, originalism. That’s the idea championed by the late Justice Antonin Scalia that the intentions of the framers should determine the meaning of the Constitution.
Now some conservatives want to sideline originalism in favor of textualism, the literalist notion that the words of the Constitution have to be interpreted according to their dictionary meaning, even if the historical evidence clearly points in the opposite direction.
This theory is about to split the court’s conservatives. Right when a dominant conservative majority is poised to change the face of constitutional law, its members are starting to find they can’t agree on what the true conservative position should be.
The reason is a deep tension between two parts of Scalia’s jurisprudence: originalism, which says the Constitution means what its writers took it to mean, and textualism, which says words in a law should be understood according to their modern linguistic, or literal, meaning.
As a statement of Scalia’s originalist jurisprudence, this is just completely wrong. Scalia’s view was absolutely not that “the intentions of the framers should determine the meaning of the Constitution.” Scalia was instrumental in shifting from the older version of originalism, which sought the framers’ intent, to the modern version of original public meaning. That is such a conventional view of the historical development of originalist philosophy that I’m not even going to bother to link to sources.
Further, as a statement of Scalia’s textualist jurisprudence, it’s also just completely wrong. Scalia’s view was absolutely not that “words in a law should be understood according to their modern linguistic, or literal, meaning.” Just take just a quick glance at Scalia’s Reading Law for a complete refutation of the idea. An essential part of Scalia’s textualism was that words should be understood according to their original meaning, not their modern meaning. I challenge anyone to find anything in Scalia’s writings that privileges modern meaning over original meaning. That’s why Scalia’s opinions rely on old dictionaries, not modern dictionaries, in interpreting both old statutes and the Constitution. There’s no tension at all between Scalia’s originalism and Scalia’s textualism. They are are two sides of the same coin: legal meaning (in his view) derives from the meaning of the relevant text at the time of its enactment. (To be clear, I’m not saying there aren’t any tensions in Scalia’s jurisprudence, just that this isn’t one of them.)
From later on:
In a sense, textualism is a form of anti-originalism. It stands for the idea that, to understand a law, you shouldn’t ask what the legislature meant to say or what the law’s purpose is. You should just look at what the law says. Textualists usually insist they aren’t literalists, following the words to absurd conclusions. But the embarrassing truth is that they have no convincing theory of how to avoid following the words literally, because they can’t rely on intent or purpose to say what result is absurd and what result isn’t.
Right about now, you might be asking, how could Scalia be both a textualist and an originalist? One theory advocates ignoring the history of a law’s enactment in ascertaining its meaning. The other says that history is decisive in interpretation.
The short answer is that Scalia himself claimed to distinguish statutory interpretation (use textualism!) from constitutional interpretation (use originalism!). He didn’t have a great answer for why this interpretive distinction should exist. The most charitable reconstruction of his view is that he always wanted to constrain judicial discretion. He believed, rather doubtfully, that historical originalism constrained judges by virtue of relying on historical facts. He believed that looking to legislative intent or purpose in reading statutes gave judges too much leeway.
Again, this analysis is fundamentally misconceived. In Reading Law, Scalia makes no such distinction (nor do his judicial decisions). He viewed constitutional interpretation and statutory interpretation as essentially the same enterprise — hence the full title of his book is “Reading Law: The Interpretation of Legal Texts,” not “Reading the Constitution” or “Reading Statutes.” It’s true that Scalia’s textualism “stands for the idea that, to understand a law, you shouldn’t ask what the legislature meant to say or what the law’s purpose is. You should just look at what the law says.” But it says that you should look to what the law says, given the meaning of its words at the time of enactment, taking into account the context in which it was enacted. That’s true for both statutes and the Constitution. That’s why this approach is often called (by me, anyway) “textualist originalism.” The idea that Scalia had different approaches for different kinds of law has no foundation and unsurprisingly Professor Feldman cites nothing in support.
At Volokh Conspiracy, Josh Blackman has some distinct but equally harsh comments on the essay, which I fully endorse: Noah Feldman is Haunted By Justice Scalia’s Vote in Bush v. Gore. Some excerpts:
I have long admired Noah Feldman as a sober arbiter of constitutional law. Recently, however, his writings have been littered with elemental mistakes and salacious speculations. Continuing the trend, Feldman’s latest column left me scratching my head.
It is titled, “Scalia’s Ghost Is Haunting Conservative Justices.” The subhead is “The late Supreme Court giant united his philosophical heirs behind theories of originalism and textualism. Now those ideas are becoming a source of conflict.” The thrust of the piece is that there is some tension between textualism and originalism, and the Court’s conservatives are apparently dividing over that tension. …
I’ve been studying originalism and textualism for some time. I have no idea what Feldman is talking about.
The hook of the column concerns the independent state legislature doctrine. And he posits that in Moore v. Harper, Justices Thomas, Alito, and Gorsuch departed from Justice Scalia’s jurisprudence. …
And, of course, Feldman offers heaps of praise on Justice Barrett who did not join her “radical” colleagues. …
Mentioned nowhere in Feldman’s column is an important fact: Justice Scalia, as well as Justice Thomas, joined Chief Justice Rehnquist’s concurrence in Bush v. Gore. This opinion was the fountainhead of the independent state legislature doctrine.
Feldman wrote a 1,900 word column arguing that Scalia would have rejected the independent state legislature doctrine, but did not mention that Scalia joined the opinion that endorsed that doctrine.
I agree that the idea of a fundamental methodological conflict is Professor Feldman’s invention. On the independent state legislature theory, the short of it from an originalist perspective is that the Constitution says the state “Legislature” shall pick presidential electors and draw congressional districts. The text’s reference to the “Legislature” (as opposed to just the “State”) must mean something, but what it means depends on the meaning that phrase had at the time it was enacted — which in turn invites examination of historical context and practice. I don’t think any originalist would disagree (though of course there might be disagreements on what those sources indicate).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.