With the passing of Antonin Scalia, I want to comment on his
approach to interpreting the Constitution. Scalia was a “textualist,” that is, he
believed that in an interpretation, a jurist should be guided with the ordinary
meaning of the words contained either in a statute or constitutional
provision. I am not questioning his
approach to interpreting statutes, but that of interpreting constitutional
provisions. This approach is distinctive
from other approaches such as original intent, general principle, current
social/political/economic needs, etc.
According to Scalia, these other approaches are subject to personal
biases which are usually steered by political views. The late jurist felt that as such, they
demean the integrity of either the statute or the constitutional provision and
place a jurist in the position of a lawmaker.
Also, if the general practice of jurists is to follow these other
approaches, the Constitution itself
will lose meaning and legitimacy due to its resulting relativity and
pliability. It will not stand for
anything of substance.
Can we somehow test this approach? Let us ask some basic questions. Did Scalia view the function of a
constitution properly? How did Americans,
in the years following the ratification of the Constitution, interpret the words of the Constitution? Did they use the
ordinary meaning of the words or did they implement a vocabulary commonly
favored in their time? Is there an issue
or debate or legal matter that gives us insight as to how the initial legal
community treated the Constitution and
its provisions? Further, how did members
of the Constitutional Convention or any of the ratifying conventions treat the
meanings of the words in the Constitution? Alas, there was at least one such issue and
one such provision. The issue was
generated by the passing of the laws collectively known as the Alien and
Sedition Acts and specifically, the issue was freedom of the press.[1]
Let me address quickly the idea of the function of a
constitution. And let me frame this in
terms that juxtapose this function with the role that regular statutes
fill. I do this because Scalia would
justify his view by comparing constitutional provisions with statutes. He pointed out that regular trial courts –
criminal and civil – in their deliberations, use the regular meaning of words
contained in any relevant law or regulation.
Constitutional provisions are, according to this approach, just laws,
albeit more general in nature.
Well, in comparing the two, one cannot simply dismiss the
difference in generality as a minor point.
Statutes address specific problems, situations, or types of
conflicts. As such, they are relatively
easily changed. The requirements to
change statutes are much less challenging than those involved with changing a
constitutional provision. The general
difference is: a rough simple majority
is needed to change a law, while a super majority – roughly two-thirds majority
– is needed to change our constitution. The
processes involved with changing the Constitution
are much more onerous. This is on
purpose. I heard about the rule of thumb
that when considering a change to the Constitution,
one should first say “no” and then consider what it is about. Therefore, while thousands of laws, at all
levels of government, are passed annually, many years go by before we amend our
national constitution. This, almost from
necessity, demands more leeway in interpretation or else we would be constantly
under the impossible demand to change one or another part of the Constitution. But beyond that, a constitution is a more direct
expression of our political culture and as such takes on broader themes. Its very language will be less specific and
reflect more general concerns. In turn,
its language needs to be seen in that light.
Statutes take on the language of a contract, while a constitution takes
on the language of a compact. By the
way, in the early references to the Constitution,
as expressed in official documents, the term used was not “constitution,” but was
“compact” – see, for example, the Virginia Resolutions, 1798.
So what does the controversy over the Alien and Sedition Acts
tell us? The historical background of
these laws has to do with the political conditions of the late 1790s. At the time, globally, the powers of Britain
and France were, as usual, warring or threatening to go to war. This did not escape American interests, including
those of many ordinary Americans. There
were those who wanted to be aligned with the British side and those with the
French side. Those who wanted us with
Britain tended to be Federalists (as in the political party) and with the
French tended to be Democratic-Republicans[2] (or
Jeffersonian). President Adams, a
Federalist, wanted the US to remain neutral, but his policies did favor the
British a bit and this opened him up to a slew of criticism, some of it
appearing in the press (Republican press).
He felt that this could be detrimental to maintaining his policy of
neutrality (it is also claimed he was a bit thin-skinned) and so the Federalists
in Congress passed the Alien and Sedition Acts that did several things, but
specifically made it illegal to print attacks against the President and his
government. Adams signed the legislation
into law. A handful of journalists who
kept up the attacks were arrested, tried, and convicted. This proved unpopular, but to begin with,
were these laws, especially the Sedition Act, unconstitutional? Well, let’s see.
Of course, the relevant provision in the Constitution is the First
Amendment: “Congress shall make no
law … abridging the freedom of speech, or of the press …” . Fairly straightforward language, simple and
elegant. Can anyone misinterpret such
language? Okay, maybe you need to define
what a journalist is; is he/she anyone with a smart phone who writes a blog
(hmmm) or does the person need to be hired by a recognized news
organization? But beyond that kind of
clarification, can there be any doubt as to what the words mean?
To begin with, the consensus at the time of the writing and
ratification of this language and up to the writing and passing of the Sedition
Act (about 11 years later) was that all this amendment guaranteed was that a
journalist or a journalistic platform, such as a newspaper, did not need to get
prior permission to publish any material.
This did not prohibit the government from bringing charges of sedition
after publication and this did not depend on actual, ensuing rebellious
behavior. Also, libel was loosely
defined, and this was also held to be illegal.
And of further context, the actual constitutional provision was believed
by the majority of the Framers to be superfluous. Why? Because
passing laws addressing these concerns did not refer to an enumerated power to
begin with – making any such law unconstitutional on its face – and so any
concern about seditious or libelous publishing was a state matter. States generally had laws about such actions
and, therefore, the concern would not be something that would fall under the purview
of the central government – even if the “victim” of such published material was
the central government or its officials.
But even at the state level, there was not much protection for
journalists; they could be and readily were legally charged with seditious and libelous
criminal complaints.
Of course, the prime protesters of the national laws were
members of the Jeffersonian Party – those in opposition to the administration
of John Adams. When the controversy
began and the eventual laws were mere bills in Congress, the Jeffersonian
partisans were not so much against the idea that journalists could be held to
such standards; that is, being subject to prohibitions against liberally
defined sedition and libelous activities.
They did insist on, as was already protected, the right to publish
without any requirement of pre-approval or a licensing provision. But beyond that protection, they pushed for
other provisions in the pending legislation.
They wanted the law to insist that criminal intent had to be proven in
order to secure conviction; that juries had the power to decide whether or not
the written material was libelous in terms of law, not just facts; and that the
truthfulness of the published material could be used in the defense of the
accused – that is, if the material were true, that should be considered before
being deemed as libelous. They succeeded
in securing all of these provisions, but the debate that ensued as a result of
the controversy led them to be dissatisfied when the legislation was finally
passed and signed.
For example, this whole notion of “truthfulness” was highly
suspect. When it came to politics, whose
truth is one talking about? When one
mixes opinions with factual claims and then throws in values, emotions, and all
the elements of a political discourse that constitute how one sees the “truth,”
one is hard pressed to either make a claim or deny a claim as being true or not. And if there is a threat of potential incarceration
or fines, does a journalist even venture into anything controversial,
especially if a local population is so biased in one direction or the other and
will serve on any resulting jury? Under
such a regime of journalistic policy, how functional can the press be in
keeping an eye on government and its officials?
Currently, for example, how much longer would lead be in the Flint,
Michigan tap water if the press had not focused on the problem? Yet this case relating to the Sedition Act, as
it worked itself out in the late 1790s and beyond, demonstrates how
constitutional provisions and their interpretation transcends the mere meaning
of words.
Did the jurists ever rule the acts void? No.
The Supreme Court did not begin ruling laws unconstitutional until 1803
when it ruled that a provision of the Judiciary Act of 1789 was void in Marbury
v. Madison. As for the Alien and
Sedition Acts, they were re-codified in federal law during World War I. Since then, there have been rulings that have
spelled out the protections of both journalists and the subjects of their
reporting and editorializing. There are
still some open areas of concern; for example, exactly what rights do
journalists have in keeping anonymous sources anonymous? But I think one can easily see how, in the case
of freedom of the press, relying on the plain meaning of words was not
sufficient. A robust debate and
political interaction were needed to work out what exactly the Constitution means regarding a contentious
issue. In terms of the press, the debate
is still active. Rest in peace, Justice
Scalia.
[1]
Levy, L.
W. (1992). The Republicans and the transformation of
libertarian thought. In K. L. Hall (Ed.)
Major problems in American constitutional history, Volume I: The colonial era through reconstruction (pp. 253-261). Lexington, MA: D. C. Heath and Company.
[2]
Usually referred to as Republicans.
No comments:
Post a Comment