top of page

Don’t Select Judges in the Mold of Justice Scalia

Republican leadership refused to consider the nomination of Justice Garland as President Obama’s nomination for the Supreme Court vacancy although he was well qualified for the job. Their reason was that they wanted a nominee whose judicial philosophy was consistent with Justice Scalia’s theory of constitutional interpretation called “originalism.” Thus Republicans consider it a major achievement of the Trump administration that he appointed Justice Gorsuch, who was recommended by the Federalist Society in part because he subscribed to this theory of originalism.

The theory of originalism holds that the interpretation of a written constitution should be consistent with what was meant by those who drafted and ratified it.The Federalist Society looks to Federalist Paper Number 78 (written by Alexander Hamilton) as the basis for the theory of originalism, namely, “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature…The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Thus, Judge Scalia disparaged critics of his theory by labeling them as “legislating from the bench.”

However, the theory of originalism is a flawed ideology of constitutional interpretation for the following reasons:

As for the theory of constitutional interpretation reflecting the intent of its authors,Madison's position is especially illuminating. In The Federalist No. 37 that “all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” The meaning of the Constitution was to be found in a continuing process of interpretation and not in some specific set of intentions injected into the text at its inception. “Whatever veneration might be entertained for the body of men who formed our Constitution,” Madison declaimed on the floor of Congress in 1796, “the sense of that body could never be regarded as the oracular guide in expounding the Constitution.”

As president, Madison signed the Second Bank Bill into law even though as a representative in the First Congress he opposed the bill because he believed Congress had no constitutional right to establish a national bank. Although he had voted against the First Bank Bill, by the time he was required to sign the Second Bank Bill as president, he recognized that “Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank,” and he viewed this widespread acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

Therefore, inasmuch as Madison, William Van Murray, Edward Livingston, and Albert Gallatin’s understanding of original intent was that it was not to control the meaning of the constitution, but that it should be read in the context of later times, this defeats the argument that contemporary judges are bound to determine the intent of the authors at the time the constitution was written. Thus, as originalism requires looking back to their intent, that intent was not to look to them for the current interpretation.

Ronald Dworkin pointed out that “if they had truly wanted us to be guided by what they specifically had in mind by justice, such as ‘cruel and unusual’, ‘due process’, they would not have used such general language, but offered more evidence of their own conceptions, not in great detail necessarily, but they would have done more than name the concepts themselves. We have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not wish their original intent to play an ‘authoritative’ role in subsequent efforts to interpret the meaning of the text.”

This conclusion has real consequences for those arguing about original intent. If there are problems with an attempt to recover the intentions of a small group of authors, meeting together in the summer of 1787, those problems are now compounded by the practical difficulties of trying to figure out what went through the minds of the representatives who attended the various state conventions. These problems aside, however, it is necessary to note that, having shifted attention away from the understanding of the document shared by those in Philadelphia to the understanding of those who eventually adopted it, Madison did not let the matter rest. He went on to stress that the meaning of the Constitution was determined by an interpretive process that continued long after the Philadelphia and State Conventions had closed their doors. In one of the first lengthy discussions in Congress over how to resolve ambiguities of the Constitution, the debate in the House over the resolution calling upon President Washington to hand over the record of Chief Justice John Jay's treaty negotiations with Great Britain, Edward Livingston of New York, who introduced the resolution, argued that original intent could not be “conclusive... because...we are now as capable at least of determining the true meaning of that instrument as the Conventions were: they were called in haste, they were heated by party, and many adopted [the Constitution] from expediency.” When William Vans Murray of Maryland expressed his belief that where there were “doubts upon some of the plainest passages” of the Constitution it was the duty of a person “known to have been in the illustrious body that framed the instrument [to] clear up difficulties by [communicating] his contemporaneous knowledge,” Albert Gallatin of Pennsylvania said he was surprised to hear a view that “the opinions and constructions of those persons who had framed and proposed the Constitution, opinions given in private, constructions unknown to the people when they adopted the instrument, should, after a lapse of eight years, be appealed to.”

The Court in Brown vs. Board of Education (l954) was not able to correspond with the authors of the conceptions with which they had to work, with either the authors of the Fourteenth Amendment (l866) or the Founders themselves (l787), and yet it took the conception of “equality,” and gave it meaning in terms of contemporary norms.

So where might the Constitution's meaning be found? The Constitution's meaning is to be found in the history of interpretations (except where the meaning of the words of the Constitution are unambiguous) rather than what the Framers originally had in mind. Meaning mores, norms and words change as we learn new understandings about ourselves in our interactions from the social sciences. The Fourteenth Amendment was not written with the intent that public schools and accommodation would be integrated. The authors of the Constitution did not contemplate that prohibition of “Cruel and Unusual” punishment would prevent flogging or mistreatment of prisoners. Contemporary meaning of the Constitution necessarily incorporates human judgment, empathy, social science, emotional intelligence, reason and changing mores of society that correspond to our sense of fairness. Thus, Supreme Court justices are not “legislating from the bench” by bringing their life experience and contemporary secular mores to their interpretation. The role of judges is to win the public confidence that their rulings are fair and impartial in service of the general welfare (according to the preamble of the Constitution). For when the public loses trust in our legal system for the resolution of conflict they will resort to self-help and the order of society will be threatened.

Insofar as originalists claim that judges should disregard their life experience and call the law as they read it, this suggests that judges could be replaced by machines without the burden of human emotion. Judges, as human beings, judge events based on their unique human qualities and emotional intelligence in keeping with societal norms. Thus our judgment is corrected by the interaction of the collective judgment based on moral persuasion. Effective moral persuasion informs the audience of better and fairer solutions to conflict.

There are objective criteria for judging fairness absent religious dogma or ideology. For example, there is a contemporary consensus among people whose values are not based on religious dogma that laws that prohibit discrimination in employment and housing are reflections of equal protection of our laws and should apply to prohibit discrimination against people on the basis of sexual orientation. What sense does it make that someone should be denied the right to earn a living in work for which she is best qualified because of her choice of who she chooses to love?

This brings us to the purpose of the Humanist Legal Society. Unlike the Federalist Society our values reflect the product of human intelligence, reason, and empathy. Many of cases brought by the Appignani Humanist Legal Center have been based on the Establishment Clause of the First Amendment that prohibits government from endorsing religion or showing religious preference. The religious provisions in the First Amendment were written both to guarantee broad rights to the exercise of religious expression, but without government endorsement. Thus, atheists, agnostics, free thinkers, Buddhists, and Humanists should be accorded equal rights to exercise their conscience as the rights of religious people and should not be burdened by government preference or taxes that favor religious institutions.

Other Criticisms of Originalism

Justice Richard A. Posner in his book “Reflections on Judging” (2013) describes originalism as a rhetorical mask of political conservatism. He asserts that:

Scalia claims that his judicial votes are an objective interpretive methodology (the only objective methodology, he claims) and that because it is objective, ideology plays no role.1

Textual originalists demand that the legislature think through myriad hypothetical scenarios and provide for them all explicitly rather than rely on courts to be sensible. Thus, originalism is flawed insofar as it eliminates the limitations of foresight and the fact that a statute is a collective product that may leave many questions of interpretation unanswered by the courts because the enacting legislators didn’t agree on the answers.

An argument in favor of textual originalism may be that it would encourage legislators to make statues crystalline, but there is no evidence that it has that effect. Because of the collective nature of legislation, it makes that aspiration infeasible.

The quest for original meaning rarely dispels ambiguity. Judges are not competent historians. One form of historical analysis endorsed by some originalists is speculation about how people who lived long ago would have answered a question that had never been put to them, and could not have been because it concerned a practice or concept or technology that did not exist and was not foreseen during their lifetime. Scalia accepts this approach with respect to technological change in his interpretation of the Second Amendment, otherwise it would be read to create a right to keep and bear only eighteenth-century weapons. Furthermore, no responsible historian could give an answer to the question how an eighteenth century mind would react to twenty-first century technologies of surveillance, criminal investigation, marketing, financial regulation, mass media, etc..2

Fourteen of the eighteen professional historians that signed the amicus curie briefs in the Heller case (ruling that legislative restrictions on private gun ownership violated the Second Amendment) considered the weight of the historical evidence to be against the existence of a right to have weapons in the home for purposes unrelated to militia duty. Therefore, if historian scholars are not reliable interpreters of historical events then history is not a good candidate for bringing objectivity to constitutional decision-making contrary to the thesis of originalism.

A profound embarrassment for textual originalists was the decision in Brown v. Board of Education. In 1868, when the Fourteenth Amendment was ratified, had the provision been thought to forbid racial segregation of public schools it would not have been ratified. And “separate but equal” is consistent at the textual originalist level with “equal protection.”

Posner points out Scalia’s hypocrisy on several counts:

  • Scalia emphatically denounces the use of legislative history as a tool of statutory interpretation (which he characterized as “garbage”)3 although he joins conservative (and not liberal) opinions that invoke legislative history.4

  • Scalia is derisive of “purposive” interpretations of statutory text, nevertheless he joined a frankly purposive, anti-textualist conservative dissent in NASA v. Federal Labor Relations Authority 527 U.S. 229, 253-254 (1999)

  • The fifty-seven “canons of construction” that Scalia endorses provide him with the running room needed to generate whatever case outcome conforms to his strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, and the death penalty.He is not consistent in his application of the canons. Many are not just nontextual but antitextual, which limits the scope and utility of textualism as an interpretive method. For example, he says that “textualism in its purest form, begins and ends with what the text says and fairly implies.”5 Yet he is not committed to the “purest form” by saying that “determining what is reasonably implied [by the words of a statute] takes some judgment.”6

  • Justice Scalia considers himself a “faint-hearted originalist,” illustrating the point by saying that he would hold that flogging was forbidden by the cruel and unusual punishment clause of the Eighth Amendment, even though it was considered neither cruel nor unusual when the Bill of Rights was ratified.7 Thus, Scalia isn’t committed to textual originalism. Most of the interpretive principles he endorses are not textualist or originalist, and some, like the rule of lenity are not even interpretive.

In conclusion, “the canons of textual originalism don’t discipline Justice Scalia’s judicial votes or those who follow his theory, which appears to reflect their personal beliefs more than they do any politically neutral analytical system.”8

Posner’s alternative is what he refers to as legal realism. This is “making law serviceable by bringing it closer, in point of intelligibility and practical utility, to the people it’s supposed to serve which is the population as a whole”9 (the general welfare). Cases should be decided “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people.”10 Thus the judge carefully considers context and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law.11

Are judges that disagree with originalism nihilists?

Conservatives describe themselves as applying the law as it is, not what the judge thinks it should be. They disparage judges who do not apply the theory of originalism by accusing them of doing what feels good willy-nilly.

This assertion is based on a false premise that there are only two alternatives, either (1) originalism or (2) no objective standard for judicial interpretation. However, Justice Breyer in his theory of constitutional interpretation (a living Constitution) is constrained by (1) the objective standard of the contemporary cultural norms and (2) the judges responsibility to inspire confidence in our legal system by conveying a public sense of fairness. This is necessary to maintain an ordered society in keeping with Madison’s mission in Federalist 37.

What is the evidence as to how the court interprets the Constitution?

The case of Lawrence v. Texas decided that it was unconstitutional to treat homosexuals as criminals. In Justice Kennedy’s decision for the court12 he stated: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” In her concurrence, Justice O’Connor wrote, “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, supra, at 534; Romer v. Evans, 517 U.S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”13

She continued: “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’14 Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake.”15 Id., at 635.

In Justice Scalia’s dissent he stated:

“Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F.3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A.2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S.W.2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."16 478 U.S., at 196. [Footnote 2]

You see in Scalia’s dissent his assertion that laws based on “traditional morals” are sufficient to reject the rational basis challenge. This presumes that his Catholic faith disparagement of homosexuals represents “traditional morals.”

Humanist morality does not subscribe to this perspective. In fact, discrimination against homosexuals because of their choice of whom they love is considered by them as immoral and cruel. Treating homosexuals as criminals because of their different sexual orientation violates the rational basis test in part because it is immoral. It makes no sense to prevent someone from making a living in work for which she is qualified because of whom she chooses to love. Thus, the only way that discrimination against homosexuals has been justified on moral grounds is by those who claim that God’s laws determine what is moral and that the Bible, the Pope, or the Catholic Church are the ultimate judge of God’s law.

The Humanist Legal Society embraces civil liberties, equal protection and religious freedom benefits for atheists, agnostics, free thinkers, and humanists. Thus, we embrace the legal right to divorce, to have abortions according to the standards of Roe v Wade, and for the right of the competent, terminally ill to seek physician assistance in expediting their death. These are opposed by religious institutions as “traditional morals” because they are purported to be based on God’s law. Children are denied access to life saving medical services by Christian Scientists because of “God’s law.” Contrariwise, secular morality based on life experience finds this position abhorrent.

We are a secular nation, not a religious or Christian nation. Our laws are based on the collective wisdom of “we the people” and human judgment as a rebellion against a monarchy who was alleged to be an agent of God. Our preamble provides that the purpose of our constitution was to empower citizens to self-govern with the intent to create a “more perfect union” in service of “the general welfare”. In service of that responsibility we, as a nation, seek to have educated citizens, well informed with accurate information about the policy issues and candidates of the day.

The first draft of our Declaration originally stated: “We hold these truths to be sacred and undeniable, that all men are created equal.”17 Benjamin Franklin deleted the words “sacred and undeniable,” replacing them with “self-evident,” per John Locke’s “Essay Concerning Human Understanding.” This revision defined democracy as a secular form of government, rather than a theocratic one. Whereas “self-evident” is an expression of understanding, knowledge, and truth as being discovered from lived experience, this was a departure from truth claims as indisputable and “undeniable” because they are sacred (i.e., their source was God).

God’s laws are not debatable and claim to be irrefutable or the product of the “one true church.” God’s laws have no criteria for falsification from life experience. It is a conversation stopper.

In the absence of God’s laws, secular morality is objective. It is based on the intersubjective experience of well-informed citizens based on their distinct human capacity for intellectual expertise, emotional intelligence, reason, and empathy. It presupposes a common commitment to dialogue in which disputants agree that either party will change their mind if the other provides better evidence for an opposing position.

Gordon Gamm is a member of the board of directors of the Humanist Legal Society.

  1. Richard A. Posner, Reflections on Judging, p 182

  2. See Leonard W. Levy, Original Intent and the Framers’ Constitution (1988).

  3. Transcript of Reuters interview with Antonin Scalia p. 20, Sept. 17, 2012,, September/Scalia_Reuters_transcript.pdf (visited Oct. 3 2012)

  4. William N. Eskridge, Jr., “The New Textualism and Normative Canons,” 113 Columbia Law Review 531, 567 n. 183 (2013).

  5. Scalia and Garner, Supra, at 16.

  6. Id. at 193.

  7. Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review, 849 (1989).

  8. Posner, Supra, p. 218-19.

  9. Posner p. 354.

  10. Posner, p 354.

  11. Posner, book jacket.

  12. Lawrence v. Texas, 539 U.S. 558 (2003) page 579.

  13. Id. at 583

  14. Id. at 633

  15. Id. at 635

  16. Id. at 590

  17. Otto, S., The War on Science: Who’s Waging It, Why It matters, What We Can Do About It (Milkweed Editions, 2016), p. 74.

bottom of page