The Political Dynamics of Justice Reform in The U.S.

judges, using techniques of a now antiquated common law tradition, have made new
law, when their proper role is to interpret the constitution. For Justice Scalia that means,
first and foremost, to elucidate the original meaning of the text. Only by concentrating on
the text's original meaning, he maintains, can unelected judges avoid the danger of
acting undemocratically when they strike down laws passed by elected legislatures.
His essay is followed first by comments from four leading academics, and then by his
own responses to these comments. What is clear from these exchanges is that the task
Justice Scalia sets for the court is far more challenging than he seems to believe.
The truth is that the constitution is a peculiar amalgam of specific provisions and broad
terms (“due process”, “equal protection of the laws”, “unreasonable search and seizure”,
“cruel and unusual punishments”) which demand judicial interpretation. It is hard to see
how judges—even when adhering to the text—can avoid interpreting such terms in
controversial ways.
And what exactly is “original meaning”? The original intent of the drafters of the
constitution? Justice Scalia rejects this as too ambiguous to be a reliable restraint. In
any case, intent obviously varied among the different drafters. The enacted text of the
constitution should be the primary authority, he says, and then only its “original
meaning” to the public at the time of its enactment. But, as Jack Rakove's impressive
history makes clear, disagreement broke out about the constitution's meaning almost
before the ink was dry.
Justice Scalia does not deny that literalist readings of the constitution can be
inappropriate. He scorns a reading of the first amendment which protects only freedom
of speech and the press, and not other forms of expression such as letter writing or
making television programmes. But this promptly opens the door to interpretive dispute.
Justice Scalia tries to slam the door by claiming that the first amendment should be
limited to the “then extant speech rights of Englishmen” in 1791 when the amendment
was passed. However, he himself has voted to strike down federal and state laws
prohibiting flag burning, cross burning and animal sacrifice, none of which would have
been considered protected forms of expression in 1791.
His reply is that past Supreme Court judgments bound his hands, that precedent must
sometimes prevail over interpretation. But when exactly?
Despite the incoherence of his position, Justice Scalia should be listened to, if only as a
useful contrast to far broader approaches to constitutional interpretation. One of the
most sweeping is advocated by Ronald Dworkin, a professor of law at both New York
University and Oxford. He argues for a “moral reading” of the American Constitution, an
approach outlined in the first essay of “Freedom's Law”, and then applied in subsequent
chapters to a range of recent controversies.
Oddly, Mr Dworkin, like Justice Scalia, also claims to be an “originalist”—at least in his
comment in Justice Scalia's book. But he says that the original meaning of the
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