Back in 1998 Antonin Scalia published A Matter of Interpretation, in part of which he and Ronald Dworkin debated whether judges who properly employ public-meaning originalism in order to determine what the Constitution means will, on occasion, have to engage in moral reasoning. Very roughly, public meaning originalism holds that a statute (or Constitutional clause) expresses whatever a competent speaker of the language in which the statute is written — who was living at the time the statute was enacted — would have understood the statute to express. (E.g. an 18th Century law “only gay people may officiate at awful weddings” no doubt expresses the requirement that ministers who preside at awe inspiring nuptials must be jovial, whereas a law with that same syntax enacted in the late 20th century may well express the (admittedly bizarre) requirement that the ministers who preside at unpleasant weddings must be homosexuals. This highlights one essential aspect of textualism — the meaning of a law is “fixed” at the time of the law’s enactment.)
According to Dworkin, judges who use public-meaning originalism to determine whether (certain) actions are prohibited by (certain) laws must engage in moral reasoning. So, in order to ascertain whether the death penalty is prohibited by the Eighth Amendment, the public-meaning originalist must complete two steps: (1) figure out what someone living at the time of the Constitution’s enactment would have understood the statement “cruel and unusual punishments [shall not] be inflicted” to express and (2) because he would have understood that statement to express a prohibition against inflicting punishments that are (a) not commonly inflicted and (b) uniquely opprobrious, ascertain whether the death penalty is (a) and (b). But, because the death penalty is uniquely opprobrious is a moral proposition, the public meaning originalist must figure out whether a moral proposition is true — he must engage in moral reasoning.
Scalia disagrees: “[w]hat [the Eighth Amendment] abstracts…is not a moral principle of ‘cruelty’ that philosophers can play with in the future, but rather the existing society’s assessment of what is cruel. It means not (as Professor Dworkin would have it) “whatever may be considered cruel from one generation to the next,” but ‘what we consider cruel today [mid-18th century]‘” (Scalia, 145).
In a later post I’ll agree both with Scalia’s lamentably inchoate (and ambiguous) response and that it provides a plausible alternative to semantic-originalism. Meanwhile, I just want to note that it looks like Samuel Alito may be in Dworkin’s camp on this one. See this argument — from his dissent in Kennedy v. Louisiana — for upholding a Louisiana statute proscribing capital punishment for child rapists:
The Court’s final…justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public.
With respect the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
Implicit here is that Alito accepts (at least arguendo) that the Eighth Amendment prohibits cruel punishments (and that whether a punishment is cruel is, in turn, linked to how morally depraved is its victim). Verry interesting, and this is not the first time Alito’s originalism has lead him to differ from Scalia. (It is, of course, possible that Alito is attempting to provide a “skeptical response” to Stevens’s opinion, i.e. to show that, even granting Stevens his interpretive apparatus, the Court’s holding is wrong.)
