Here I respond to Ronald Dworkin’s criticisms of Scalia’s application of public meaning originalism by giving an example in which an analysis like that which Dworkin deploys against the Eighth Amendment fails to identify what a statement means (or expresses).
Recall from last post that Dworkin and Scalia agree that a statute means whatever a competent speaker of the language in which the statute is written would understand it to mean. Both Dworkin and Scalia also acknowledge that whether a statute is written in one language instead of another is subtle and difficult question (e.g. it might fairly be alleged that a statute written in English in the eighteenth century is written in a different language than is a statute written in English in the twenty first century; the first is written in eighteenth-century English and the latter in twenty-first century English).
In part of A Matter of Interpretation, Dworkin contends that Scalia fails to correctly apply public meaning originalism in his analysis of whether the Eighth Amendment’s injunction that “cruel and unusual punishments [shall not] be inflicted” prohibits capital punishment. As Dworkin reads him, Scalia says that the Eighth Amendment does not prohibit the death penalty because nobody living at the time the Amendment was drafted would have expected it to prohibit the same. But, by public meaning originalism’s lights, this has no bearing on what the Eighth Amendment prohibits.
To see why, consider this analogous case. There is a law, passed when desanguination was commonly considered to be an excellent cure, which prohibits doctors from employing dangerous and unreliable remedies. Nobody at the time thinks that bleeding is a dangerous and unreliable remedy, and so nobody thinks this law prohibits doctors from employing desanguination. However, competent speakers of the language in which the law is written agree that it prohibits dubious medical procedures. Because desanguination is a dubious medical procedure, therefore, desanguination is disallowed thereby; the fact that nobody thought bleeding was dubious has no bearing on whether the law prohibits the practice.
So what a competent speaker of the language in which the Eighth Amendment is written would have expected the cruel-and-unusual-punishments-clause to prohibit (and not to prohibit) is irrelevant to what, in fact, that clause prohibits. All that matters is what the competent speaker would understand the clause to express. And surely, Dworkin wants to say, he would not understand it to express a prohibition against the infliction of unusual punishments that are believed to be cruel in the 1800s. Instead, “cruel and unusual punishments [shall not] be inflicted” would have been understood, by a competent speaker of the language in which it is written, to express a prohibition against inflicting punishments that are cruel and unusual. So, by public meaning originalism, this is what the cruel-and-unusual-punishments-clause expresses. If capital punishment is cruel (a moral question) and rarely inflicted then it is prohibited by the Eighth Amendment.
Here’s why Dworkin’s analysis is at least incomplete. Suppose we were to apply public meaning originalism to something else, e.g. one of John Stuart Mill’s casuistries. And suppose we were to come across this in that tract: “You ought to do what it is good to do.” A Dworkinsian would note (as seems plausible) that a competent speaker of the language in which Mill writes would understand this statement to express that you have a reason to do what you are morally obliged to do. Now suppose that one is morally obliged to respect another’s rights regardless of the consequences of so doing (suppose, in other words, that some sort of deontological moral theory is true). Then Mill’s statement advises that you have a reason to respect another’s rights regardless of the consequences. But this is absurd. Mill, inveterate consequentialist that he was, would never have written such a thing.
So Dworkin’s analysis is incomplete. True, Mill’s statement expresses that you have reason to do what you are morally obliged to do. But Mill also took that you are morally obliged to do whatever brings about the best consequences. So to read Mill’s statement as advising that you have a reason to respect another’s rights regardless of the consequences is deeply disingenuous.
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Is this a counterexample to public meaning originalism, or can it be reconciled with that doctrine? I think it can be reconciled by further contextualizing our understanding of what it is for something to be written in one language instead of another. For example, Mill’s essays are not written in nineteenth-century English, they are written in JS Mill’s nineteenth century English – an English with its own terms of art and elliptical phraseology. So, when Mill writes (if he writes) that “one ought to do what it is good to do” his sentence should (often) be taken as elliptical for “one ought to do whatever brings about the best consequences,” because that is what someone fluent in JS Mill’s nineteenth century English would usually understand such a statement to express.
Returning to the Eighth Amendment, then, Dworkin’s problem is that he hasn’t done enough to show that a competent speaker of the language in which the Eighth Amendment is written would indeed understand the cruel-and-unusual-punishments clause to express a prohibition against inflicting punishments that are opprobrious and unusual. Perhaps in the framers’ eighteenth century English that Amendment was elliptical for a more fully fleshed out proposition.
