THE COMMON MEANING OF WORDS?

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.

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[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.

PROPERTY AS SELF (continued)

[This posting picks up where the last one ended.  It was posted on March 11 and if you have not read it, I suggest you do.  In that posting, I laid out a basic historical shift that was taking place in both Britain and the US.  As result of that change, the growing commercial and industrial class was growing and beginning to make claims on the political system.  They latched on to the ideas of John Locke who glorified the productive efforts of this class.  In doing so, their argument undermined, here in the US, the republican/federalist perspective that by all accounts was dominant in the early years of the eighteenth century but that lost influence due to the economic successes of the commercial and industrial sector.  The postings, this one and the last entry, reflect the arguments of Isaac Kramnick.[1]  Let me continue …]

I contend that the over century-old bias toward communal perspectives that characterized federalist thinking of pre-Revolutionary Americans was not going to go away so simply.  And here I believe, lurking in the backdrop of our social thinking, we have a definite split between our espoused theory and our theory-in-use.  Our espoused theory would continue to be one supportive of civic humanism, but more and more of our behavior would take on the actions of self-interest to the exclusion of acting to advance the common good.  To a historical point in time, not until after World War II, we continued to feel guilt associated with such behaviors that disregarded the common good.  Today, there is little to no such remorse and shame seems to have become a remnant of the past.

Let me describe these radicals, the disciples of Locke, a bit more.  I mentioned the new radicals (and their radicalism) that sprang up during those years in the late 1700s and took on the fight to wrest away the inherited privileges of the nobility in Britain (or as they might have been referred to as the “no ability” – a Thomas Paine term).  These radicals wanted “in;” that is, they wanted their seats at the tables of power, both economically and politically.  The one galvanizing issue that brought this struggle in focus was the fight for equal representation in Parliament.  The phraseology used in their debates mirrored Locke’s language as it appeared in his The Second Treatise on Civil Government.  Let’s pick up Kramnick’s description:

Even more important than this textual linkage between Locke and the reformers, however, is the far deeper theoretical bond the reformers constructed between themselves and such Lockean themes as contract, state of nature, and natural rights and government as a trust in all of their writing on taxation and representation.[2]

What seemed to be welling up among the radicals was an indignant attitude in which they felt they were being deprived of what was theirs.  And that reform needed to be comprehensive, including overturning institutionalized practices – hence the title radicals for these advocates.

In the US, as I indicated in my last posting, the mix was a bit different.  I mentioned the yeoman farmers.  Those farmers functioned in the style conducive to capitalist processes; they established commercial connections; they believed

[a]lthough agriculture was a morally superior pursuit, its superiority did not lie in any more virtuous, precapitalist ideal.  Commerce had less value only insofar as it drained away resources:  “To foster every, or any other employment of capital at the expense of agriculture – by diminishing the savings of the farmer and forcing him to maintain the manufacturer – or by tempting the capitalist from agriculture into manufacture, is plainly contrary to our most undoubted policy.”[3]

The yeoman’s moral concern was the perceived dependency of the commercial and industrialist classes on the farmer.  This was an analogous argument of the country faction abusing the town faction in Britain. This sense of promoting self-interest found sympathetic ears here in America among these yeoman farmers and the business interests in the city.  So, in the late eighteenth-century in the US, there was a link to British reform reflecting socioeconomic changes.  This link was not available to republican motivated advocates.

But there is still one last overlap between the republican-federalist advocates and natural rights advocates.  And this, I think, is important to keep in mind because on the one hand it provides the language of many of the arguments that have been expressed in our political debates since the late eighteenth century and on the other hand has highlighted the moral perspectives of those earlier advocates of the natural rights perspective.

Locke couches his argument in nearly religious language as do those who favor the civic humanist view.  But the language changes from one of equality of consent to an inequality of favoritism.  He points out that God has created us with the abilities to be industrious and rational, but that those gifts are not evenly distributed.  Some people are just more industrious – more energetic – and therefore they will end up with more property.  He writes in an accusatorial tone about those who are not so blessed, which is a bit illogical. They should not acquire or, as is the case during those years, inherit property.  He describes them as “the fancy or the covetousness of the quarrelsome and contentious.” 

Property is central here – he argues that property is an extension of a person.  Property reflects the person infusing him/herself into nature.  And who were these quarrelsome and contentious lowlifes?  Why, some country squires and all of the poor.[4]  In general, Kramnick tells us that Locke expressed little sympathy or empathy for the poor; one questions how knowledgeable he was of their challenges.

Let me end with this summary of Locke’s argument.   A corrupt system is one in which unproductive people, privileged parasites, hold positions of power.  The radicals took up Locke’s ideas and language to exert political activity to advance their interests.  These interests were based mostly on their business activities, that of yeoman farmers, tradesmen, and industrialists.  They directed their vehemence toward patronage and other privileges of the favored, entrenched powerholders.  And so, Kramnick contends that the republican/federalist concerns for the common good were replaced in the minds of Americans with economic productivity and a morality of hard work.  Who was the moral person?  To answer, one needed only to apply the criteria of hard work and productivity.  I guess the criterion of success was also applied.  We even see these themes in children’s literature beginning to appear during that time.  One more quote from Kramnick’s article:

Hence, not just Adam Smith but a chorus of writers in the last decades of the eighteenth century sang the praises of specialization and the division of labor.  The very heart of civic humanism was repudiated and its values reversed by the radical middle-class crusade to professionalize and specialize, to replace what it saw as corrupt political man with virtuous and productive economic man.[5]

That’s Kramnick’s argument; I, for the most part, disagree.

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[1] Kramnick, I.  (1992).  John Locke and liberal constitutionalism.  In K. L. Hall (Ed.) Major problems in American constitutional history, Volume I:  The colonial era through reconstruction (pp. 97-114).  Lexington, MA:  D. C. Heath and Company.

[2] Ibid, p. 105.

[3] Ibid., p. 107.

[4] According to Kramnick, Locke suggested “working schools” for the children of the poor where they would be taken from their parents and put to spinning and knitting to cure their idleness.  The profits gained from these learning experiences would pay for the costs of maintaining those “schools.”

[5] Op cit., Kramnick, 112-113.