In a discussion of Scalia’s interpretation of the phrase “cruel and unusual punishment” found in the U. S. Constitution, Legal Fiction says in his Law and Politics blog
To me, the Constitution consists of words and nothing else. Text is the essence of what it is. [snip] Words like “cruel,” “unreasonable,” “speech,” “commerce,” “cruel and unusual,” and “search” lack a clear determinant meaning. That’s not to say they are wholly indeterminate, but rather that there is a range of plausible meanings.
[Snip] Scalia looks at the Constitution and sees “understandings” – I look at the Constitution and see words. Scalia’s entire legal edifice is built not upon words, but upon a single understanding of a word. In other words, it’s built not on the meaning of the text, but upon the selection of a single subset of the word’s total possible meanings – one that is contingent and arbitrary. I see no reason – and more critically, no justification in the text – to favor one “understanding” over another. [Snip]
To me, the Framers ratified words. They did not ratify floating penumbras of understandings that surround and envelop the words. The words we have. The understandings we don’t.
Before responding to this post, let me relate an anecdote. Some years ago, six linguists and 7 lawyers met for a discussion of language and the law at a weekend colloquium at
As I noted, Legal Fiction says
To me, the Framers ratified words. They did not ratify floating penumbras of understandings that surround and envelop the words.
It is no more enlightening to say that the Constitution consists of words and nothing else or that the Framers ratified words and nothing else than it would be to say that the Constitution consists of paper and ink and nothing else and that the Framers ratified some paper and ink and nothing else. In fact, if one is absolutely determined to oversimplify things, it would be truer to say that the Framers ratified a set of understandings than a set of words.
Legal fiction has got things entirely backasswords. The Framers weren’t ratifying just words. If that were true, they could have saved themselves a lot of work if they had just ratified their favorite dictionary. I would argue that the Framers of the constitution agreed to a set of understandings and chose the language that best expressed these understandings. Importantly,
these understandings reflected the context in which they lived, no less than the understandings of the utterances we encounter every day depend on context (see my blog The Meaning of Meaning)2 And therefore in understanding the Constitution, it is imperative to consider the context in which they lived if we are to understand its meaning to the Framers. And that is the rub. The context in which we live is very different from theirs. And, to some degree, so is the language, but not I think the meanings of "cruel" and "unusual".
The Framers lived in a time in which certain punishments would and certain other punishments would not be seen as cruel or as unusual. We are not obligated as interpreters of the Constitution to restrict ourselves to their context, and therefore, to their specific understandings of what at that time would have counted as a cruel or an unusual punishment3 What have changed are the referents of the phrases "cruel punishment" and "unusual punishment."
The specific argument Legal Fiction has with Scalia turns on the latter’s claim that in determining whether putting juveniles to death is unusual, one should not factor into the discussion states that have no death penalty at all. Such states are relevant to the question whether the death penalty is itself unusual but not to whether some particular practice by death penalty states is. The issue is quite like that of excluding from juries in capital cases, jurors who are adamantly opposed to the death penalty. To determine whether putting juveniles to death is unusual one must look at the practices of the states that have the death penalty. If there are 22 states with the death penalty and only 2 allow putting juveniles to death, then putting
juveniles to death is an unusual practice. But if 20 of them allow it it is not unusual. It may be immoral, but it is not unusual.
As I made clear in my first blog on the Death Penalty, I am opposed to it not in principle but because I don’t think we are capable of administering it in a fair way. So, politically, I am with Legal Fiction and against Scalia, but Legal Fiction is flat out wrong in saying that Scalia is not interpreting the Constitution correctly in this case.
1 An edited version of the proceedings and a number of papers from participants and others interested in language and the law were published in the Washington University Law Quarterly,
73:3, 1995. At some point, I will blog on about the substance of my paper pointing out how it is that Justice Scalia does and Justice O’Conner does not have a clue about language.
2 A written sentence should be thought of as an utterance taking written rather than spoken or signed form.
3 I assume that there has been no substantive change in the lexical meanings of either "cruel" or "unusual."