Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to prohibit this punishment. But it occurred to me, when I re-watched Justice Scalia’s impassioned and entertaining defence of originalism in a debate with then-Justice Binnie at a conference a few years ago, that he, and originalists generally, are fainthearted in another, much broader way.
Justice Scalia’s argument for originalism goes something like this. Even if there are right and wrong answers to questions about morality of the sort that arise in judicial review of legislation, questions about the permissibility of abortion or the death penalty, for example, or the extent of the freedom of speech, or of the right to privacy (and he thinks that there are indeed right and wrong answers to such questions, dictated by natural law), we have no satisfactory way of demonstrating that any given answer to such a question is right. Therefore, we cannot pretend that the answers that we give to such questions aren’t political, so that impartial experts can figure them out. There are no “moral experts” who can do that job. In particular, we have no reason to believe that judges are endowed with moral expertise greater than that of “the fabled Joe Sixpack.” They disguise their moral reasoning behind legal forms, but the law doesn’t really give answers to these fraught questions. The only way we have to resolve them is by figuring out what the people think about them, through the political process. So when the people have, through the political process of ratifying a constitution, resolved the question of what rights should be protected against legislative abridgement, judges, entrusted with the enforcement of that protection, should stick to what the people have resolved and go always so far but never further. Because they are not moral experts, judges cannot revise―either upwards or downwards―the protections that the people have granted, which are the people’s own answers to moral questions facing the community.
The first part of this argument is very familiar indeed―from the work of Jeremy Waldron. In “The Core of the Case against Judicial Review,” prof. Waldron too argues that we have no agreed way to determine which answers to difficult questions of political morality are right and which are wrong; that judges, in particular, possess no expertise in these matters; that they do more harm than good in trying or pretending to deal with these questions as if they were legal rather than political; and that rather than trust the judges with moral reasoning, we should let the people, or better their elected representatives, decide.
Prof. Waldron and Justice Scalia part ways in the conclusions they draw from this. Whereas Justice Scalia accepts judicial review of legislation as a given and argues that the consequences of the judges’ lack of moral expertise lie in the realm of interpretive methodology, prof. Waldron takes the position that judicial review itself is the problem and should be abandoned. Since judges know no better than the people what “the truth about rights” is, they have no business second-guessing the people’s conclusions about this matter―not just the conclusions the people reached once upon a time, when they ratified a constitution, but at any given time, whenever they enact a piece of legislation.
I think that, as between these two views, prof. Waldron’s is the more persuasive one. If there is no way to demonstrate that one has “the truth about rights” in one’s possession, then what justifies the people in deciding that they are in fact possessed of that truth and making it impossible for later generations to revise it by majority vote? If we can only answer moral questions through the political process, how is it just to then remove the answers we give to these questions from that process?
And so, I have the impression that Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way―fainthearted Waldronians.
All this is not to say that the originalist/Waldronian view of the nature of judicial review―the view that it requires answering distinctly moral questions on which the law doesn’t have special insight―is correct. But it is at least plausible, and should not be dismissed lightly. All the more important, then, to be clear about its implications.