Originalism Without Scalia

Scalia is dead. Congress is fighting over who will replace him. Who should we pick?

Do we want a legal pragmatist who will create a more activist court? Or do we want a legal formalist, in the same vein as the late Justice Scalia, who will limit judicial activism?

The Constitution has two jobs: it provides the blueprints for a federal government, and then it limits the power of that federal government. But after FDR’s court-packing plan and the Warren Court of the 1960s, no foreign observer would be able to guess that. The three branches of government are supposed to check each other to make sure that no branch gains too much power. But the Supreme Court, in recent decades, has usurped the role of Congress and decided it would make new laws it felt were necessary to keep up with the times. That is why every state now has gay marriage—which is not a bad thing necessarily—but it also was not the Supreme Court’s choice to make.

The “activist judges” on today’s Supreme Court include all the liberal-leaning Justices, but also some of the conservative-leaning Justices. These activist judges almost always rely, at least in part, on “legislative intent” when interpreting legal texts. The only true originalist-textualist is Clarence Thomas, but even he uses “legislative intent” on rare occasions. The late Justice Scalia was the only member of the Court to reject its use absolutely. But is an absolute rejection really wise, even for originalists?

When should a Justice appeal to legislative intent?

Details below.
–Natty D

A Kinder, Gentler Originalism: Legislative Intent as Tie-Breaker

By: Adam J. Ondo

Texas Tech University School of Law, J.D. 2017

1. An Introduction to Statutory Interpretation

In order for this article to make much sense, the reader is going to need to understand the differences between legal pragmatism and legal formalism, specifically the originalist-textualist approach used by many legal formalists. Legal pragmatism is best described as everything that is not legal formalism. Phrases often used by proponents of judicial pragmatism include: fairness, best outcome, common sense, consequences, policy considerations, avoiding absurd results, Living Constitution, evolving standards, and legislative intent.[1] Formalists, on the other hand, believe there is a fixed, immutable meaning behind every text; the trouble, sometimes, is discerning that meaning. One popular brand of formalism is originalism, which can, for our purposes, be divided into two distinct categories: original meaning and original intent. Original meaning textualists attempt to discern how the text (e.g., the Constitution) would have been understood at the time it was written by the ordinary citizen (sometimes defined as ordinary citizens with voting rights).[2] Original intent textualists attempt to divine the subjective intent of Congress or of the Founding Fathers, which is difficult as neither group ever speaks with a single voice. Original meaning textualism is the best option because we are bound by the words published in the country’s legal code, not the intent of lawmakers or the wisdom of the judiciary, which original intent textualists and legal pragmatists would have us be bound by, respectively.

1. Scalia’s Disdain for Legislative History

The late Justice Scalia was one of the leading intellectuals behind the original meaning movement, which discounted the feasibility of being able to discern legislative intent. In fact, Justice Scalia felt that the quest to uncover legislative intent should be abandoned and the use of legislative history when interpreting the meaning of statutes discontinued.[3] But what would Justice Scalia do in a situation where Canons of Statutory Construction[4] yield conflicting results, neither of which are more logical than the other?

In his famous essay on statutory interpretation, A Matter of Interpretation, Justice Scalia explained: “Every canon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons), it must yield.”[5] Basically, Justice Scalia wants to weigh opposing results against each other and just pick a winner, even if there are equal canons for that result as there are against. Justice Scalia acts as if this is a quantifiable analysis, awarding 15 Scalia points for a dictionary definition in favor of Interpretation A, while awarding 20 Scalia points for the use of expressio unius, a canon of construction meaning that the inclusion of one thing means the exclusion of all other things,[6] in favor of Interpretation B. But how is a judge’s arbitrary, or, more likely, biased, decision of which outcome prevails less troublesome than looking to recorded legislative history? Why can’t legislative intent, derived from legislative history and historical context, be a “contrary indication” that serves as a tie-breaker? A recent case out of Oklahoma provides a good example of how judges can use legislative intent as a tie-breaker when interpreting an ambiguous statute.

In Sanford v. Sanford, an appeals court in Oklahoma determined that the non-enumerated language following four enumerated factors allowing a judge to grant a life time restraining order actually constituted an independent fifth factor.[7] Because it is hard to visualize, here is the statute:

1. [A restraining order may be made] continuous upon a specific finding by the court of one of the following:

(1) the person has a history of violating the orders of any court or governmental entity,

(2) the person has previously been convicted of a violent felony offense,

(3) the person has a previous felony conviction for stalking as provided in Section 1173 of Title 21 of the Oklahoma Statutes, or

(4) a court order for a final Victim Protection Order has previously been issued against the person in this state or another state.

Further, the court may take into consideration whether the person has a history of domestic violence or a history of other violent acts. The protective order shall remain in effect until modified, vacated or rescinded upon motion by either party or if the court approves any consent agreement entered into by the plaintiff and defendant.[8]

One may think that if the Oklahoma Legislature included numbers before the first four sentences, but not before the “history of domestic violence” sentence found at the beginning of the “flush language” (the legal term for the block of text following the enumerated portion of the statute), it did not intend for domestic violence history to be a standalone fifth factor. However, the court reasoned that the Oklahoma Legislature is presumed to not include sentences that serve “virtually no purpose,” and domestic violence history would not need to be shown if one of the other four factors were present, as any one factor is automatically sufficient to grant the restraining order.

So, because two logically sound interpretations based on widely accepted canons of construction are present, what should the appeals court do? Justice Scalia appears to be of the opinion that they should just go with what they, the judges, determine is the better outcome. That sounds a lot like judicial pragmatism. The Oklahoma appeals court took the approach that I advocate for: it used legislative intent as what I am going to label a tie-breaker. It noted, “Last, the intent of the legislation is to prevent and protect from violence,” and then decided to adopt the interpretation that a history of violence was an independent fifth factor, which makes it easier to obtain a restraining order. The court wanted to construe the statutory language as to fulfill the act’s intended purpose, rather than interpret it narrowly based on the fact that domestic violence history was not enumerated like the other four factors.

III. A Suggested Analysis for Statutory Interpretation

(1) Analyze Statutory Text, if ambiguous, proceed to step two

(2) Determine Legislative Intent, if still ambiguous, flip a coin

The first step, analyzing statutory text, involves applying Canons of Construction. Justice Scalia would have one apply all the canons at once and then weigh them against one another. I prefer to divide the analysis into two parts. First, look for the plain meaning of each term used in the statute. To do this, find sources explaining how the word was defined at the time the statute was enacted (e.g., a dictionary from 1925), sources actually employing the term (e.g., a collection of letters from 1804), and historical context (e.g., a statute enacted a year before the Civil War referencing Beecher’s Bibles, which were not bibles at all). Second, if the original plain meaning is still ambiguous, look at what the terms mean within the context of the statute and the entire act. This involves analyzing grammar and syntax, as well as making linguistic inferences (e.g., the expressio unius principle explained above). If both parts of step one fail to yield clear results, legislative history and historical context should be examined in order to determine the legislative intent, or “purpose of the act.” If this second step is not helpful, the next step is to flip a coin, because leaving the interpretation to chance is fair—in the Harvey Dent sense of the word—and does not require the judiciary to usurp the legislature’s role, which is what Justice Scalia’s method requires judges to do.

At this point, I would like to note, this is by no means the proper or established analysis one needs to follow; this is just what I find most logical. I will now provide a sample analysis concerning the Sixth Amendment, which is not technically an act, but will work for our purposes. Despite the fact that the Miranda warnings you hear on television shows tell you that you have a “right to have an attorney provided to you if you cannot afford one,” that is not actually a phrase found in the Constitution. The exact language is: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” So, let us analyze this language.

The first part of step one is not very useful, except that “right . . . to have” probably did not suggest entitlement to have an attorney provided by the government, as “right” was not yet associated with positive rights and entitlements, as the United States was not yet a welfare state. Instead, it is best to look at the Sixth Amendment’s “right to counsel” in the context of the rest of the Sixth Amendment and the entire Bill of Rights, which is what I consider the second part of step one. The Bill of Rights is full of negative rights, lending more credence to the argument that this is not a positive right (a right to be provided an attorney). Rather, it is likely a negative right (a right to not be prohibited from having an attorney present). Also, one canon of construction is that courts are to presume every term in a text was included for a reason. Notice that the Sixth Amendment begins “In all criminal prosecutions.” Why not just say “In criminal prosecutions?” This may seem like I am just grasping at straws, but historical context suggests that there is a non-superfluous reason to have clarified all criminal prosecutions: England, until the 1800s, prohibited the use of defense attorneys in felony proceedings.[9] In light of this fact, it seems logical that the ordinary citizen in 1791 would have likely interpreted the Sixth Amendment as reversing the old English rule barring the use of defense counsel in felony proceedings, rather than guaranteeing poor people a right to be provided an attorney free of charge. Therefore, the Supreme Court reached an incorrect outcome in Gideon v. Wainwright, which required states to provide attorneys to poor defendants because to do otherwise would be unfair now that criminal trials are extremely technical.[10] But the Supreme Court is not supposed to change the law to make it fair; Congress must use the amendment process to update the Constitution.

1. Conclusion

The deluge of legal pragmatism into our court system has washed away many of the core tenants found in the Constitution, thus weakening the foundation of our democracy which is slowly sinking into the quicksand created by an activist judiciary. Accordingly, now that one of the pillars of the originalist movement, Antonin Scalia, is gone, new attorneys need to assume the mantle. However, they need not adopt and promote every belief Scalia held. An absolute refusal to use legislative intent when attempting to interpret a statute is one belief that should be abandoned, as it can be a useful tie-breaker. That being said, legislative intent should be relied on very sparingly. Indeed, legislative intent should only be used in situations where the competing canons of construction are equally persuasive.

[1] Richard A. Posner, What Has Pragmatism to Offer Law?, 63 S. Cal. L. Rev. 1653, 1657 (1990) (“The judge is not a finder, but a maker, of law”).

[2] United States v. Sprague, 282 U. S. 716, 731 (1931) (“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”)

[3] Antonin Salia, A Matter of Interpretation: Federal Courts and the Law 29–37 (1997).

[4] The Rehnquist Court’s Canons of Statutory Construction, Natl. Conference of State Legis., http://www.ncsl.org/documents/lsss/2013PDS/Rehnquist_Court_Canons_citations.pdf.

[5] Id. at 27.

[6] Example: “No smoking within 50 feet of door” suggests it is not prohibited to smoke 51 feet away from the door, or 5 feet away from a window for that matter, assuming there is no door within 50 feet of the window.

[7] Sanford v. Sanford, 2015 WL 10683240 (Okla. Civ. App. Oct. 1, 2015)

[8] Okla. Stat. Ann. tit. 22, § 60.4(G)(1)(b) (West 2016).

[9] John H. Langbein, The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors, Cambridge L.J. 58(2) (1999): 314–365.

[10] Gideon v. Wainwright, 372 U.S. 335 (1963).