concerns principles of judicial interpretation of the of public laws and the sentences and clauses of the Constitution. The required reading for this week’s discussion includes: [1] The Antonin Scalia—Ronald Dworkin Debate, From Antonin Scalia, “A Matter of Interpretation Federal Courts and the Law“ (Princeton Princeton University Press, 1997), in David Adams, 4th ed, p. 172—188.pdf and [2] Justice Antonin Scalia dissenting (joined by C.J. William Rehnquist and Justice Clarence Thomas) in Lawrence v. Texas, 539 U.S. 558 (2003), 539 U.S. 558, 123 S. Ct. 2472.pdf In 1997 Princeton U. Press published “A Matter of Interpretation – Federal Courts and the Law,“ comprising (in the first fifty pages) an essay by the late United States Supreme Court Justice Antonin Scalia (1936 – 2016) entitled “Common-Law Courts … The Role of United States Federal Courts in Interpreting the Constitution and Laws.” The rest of the book contains critical commentaries on Scalia’s lecture by invited scholars, including New York University Professor of Law and Philosophy Ronald Dworkin (1931 – 2013). Please read David Adams’ abridgment of the substance of the debate between these two speakers in the first of the two reading assignments above. Scalia was one of our country’s most steadfast proponents of the doctrine the role of United States Federal Courts in interpreting the Constitution and the public laws is to determine the original meaning of the drafters of the statutory language. This doctrine is called “originalism.” Originalism is opposed to what Scalia calls the “the ascendant school of constitutional interpretation affirms the existence of what is called ‘The Living Constitution’, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society.” (see Adams p. 181). Scalia’s chief purpose in writing the essay is stated on pages 12—13 of the book, which, although it is not included in David Adams’ abridgment of the essay above, you may view online at the following link: https://archive.org/details/matterofinterpre0000scal/page/12/mode/2up https://archive.org/details/matterofinterpre0000scal/page/12/mode/thumb The following passage occurs in the context of Scalia’s discussion of “democratic legislation” in the pages above. Scalia writes: “My point in all of this is not that the common law [which grows and changes from age to age, in order to meet the needs of a changing society] should be scraped away as a barnacle on the hull of democracy. I am content to leave the common law, and the process of developing the common law, where it is. It has proven to be a good method of developing the law in many fields—and perhaps the very best method. An argument can be made that development of the bulk of private law [contracts] by judges (a natural aristocracy, as Madison accurately portrayed them) [citing “The Federalist” No. 49, at 341] is a desirable limitation upon popular democracy. … “But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge—the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”—is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law. … This is particularly true in the federal courts, where, with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law resolved by a federal judge involves interpretation of text—the text of a regulation, or of a statute, or of the Constitution. Let me put the Constitution to one side for the time being, since many believe that that document is in effect a charter for judges to develop an evolving common law of freedom of speech, of privacy rights, and the like. I think that is wrong—indeed, as I shall discuss below, I think it frustrates the whole purpose of a written constitution.” The above passage from Scalia’s lecture serves as a good point of departure for our concluding lessons in contemporary philosophy of law. In the remaining three weeks of the course, we will concern ourselves first (this week) with Scalia’s “originalist” opposition to the highly controversial doctrine of a “substantive” due process liberty interest in privacy, which was introduced by the Court in the 1960s, and served as the foundation of the landmark decision in Roe v. Wade, 410 U.S. 113 (1973). Roe v. Wade recognized a pregnant woman′s right to elect an abortion, in consultation with a physician, before the point at which the fetus might survive outside of the womb. Scalia continued, throughout his time on the Supreme Court, to oppose the highly controversial doctrine of a “substantive” due process liberty interest in privacy. On Wednesday we concern ourselves with the Court’s use of the “heightened” or “strict scrutiny standard of review” as the logical standard by which to assess whether the particular restrictions imposed by a state law on freedom of speech, among the most “fundamental” of our Constitution’s protected civil liberties, may violate the Constitution’s guarantee of First Amendment liberties. We will examine how Justice Scalia, who wrote the lead opinion in Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011), which struck down California’s ban on the sale of violent video games to underage children, persuaded a majority of the Court in applying that standard of review, over the respective opinions of the dissenting Justices Stephen Breyer and Clarence Thomas, which argued, on different grounds, that California’s asserted governmental interest in protecting the right of parents to make decisions for their child properly addressed how parents should make such decisions, as opposed to how they in fact do make such decisions. And in the final week we will address the current status of the standard of review by which the Court assesses whether particular restrictions imposed by a state law on a pregnant woman’s procreative liberty in electing to have an an abortion (in consultation with a physician before the point at which the fetus might survive outside of the womb) may violate the recognized due process liberty interests of such pregnant women. Since the passing of Justice Antonin Scalia in 2016, this standard of review appears to have undergone a modification making it easier for the state to justify restrictions on pre-viability abortions. Beginning with the Court’s decision in Whole Woman′s Health v. Hellerstedt,” 579 U.S. ___ (2016), No. 15-274 (lead opinion by Justice Breyer) the Court has employed a casuistic “benefits-and-burdens balancing test” which considers not only the weight of a pregnant woman privacy right, but also the relative weight of countervailing benefits the State might prove justify the restrictions imposed by the law. Before I proceed to the questions presented for this, our Discussion Forum for Week Twelve (Nov 16—30), which will be concerned with specific issues regarding Scalia’s “originalist” opposition to the highly controversial doctrine of a “substantive” due process liberty interest in privacy, introduced by the Court in the 1960s, and served as the foundation of the landmark decision in Roe v. Wade, 410 U.S. 113 (1973), allow me to provide some explanatory remarks regarding Scalia’s belief that the proper role of United States Federal Courts in interpreting the Constitution and the public laws is to determine the original meaning of the drafters of the statutory language, which he discusses in his lecture entitled “Common-Law Courts … The Role of United States Federal Courts in Interpreting the Constitution and Laws.” David Adams’ abridgment of Scalia’s paper (included in the first of our readings above, namely, “The Antonin Scalia—Ronald Dworkin Debate, From Antonin Scalia, ‘A Matter of Interpretation Federal Courts and the Law’ (Princeton University Press, 1997), in David Adams, 4th ed, p. 172—188.pdf”) was designed to highlight the differences in vantage point on Constitutional and statutory interpretation between Scalia’s “originalist” position” on the one hand, and the opposing view of New York University Professor of Law and Philosophy Ronald Dworkin (1931 – 2013) on the other. Dworkin’s critical commentary on Scalia’s position is thus appended to Adams’ abridgment of Scalia’s paper in the said reading. Scalia’s purpose in publishing his lecture as an essay was to open up a forum to discuss “The Role of United States Federal Courts in Interpreting the Constitution and Laws.” Before dealing with the issue of how the Courts should properly interpret the Constitution, Scalia urges us to consider that judicial interpretation ought not to usurp, in a democratic republic, the authority proper to the lawmaking body, the legislature, and that means, on the federal level, that authority being properly vested in the Congress. Scalia says, as I quoted above “We live in an age of legislation, and most new law is statutory law. … This is particularly true in the federal courts, where, with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law resolved by a federal judge involves interpretation of text—the text of a regulation, or of a statute, or of the Constitution.” The particular concern addressed by Scalia in his essay is aptly illustrated in the colloquy (see below) at the oral arguments before the Supreme Court, just several weeks ago on November 10, in the momentous case now pending before the Court which will decide the fate of President Barack Obama’s signature Patient Protection and Affordable Care Act (“the ACA”), in California v. Texas (Docket 19-840). We discussed the basis of this case back in October, in Week Nine. The ACA, as originally enacted, imposed an “individual mandate” to all employers to provide their workers with health care coverage through private insurers, as well as a concomitant mandate to all gainfully employed persons to responsibly obtain such private insurance, either through their employers or on their own through private insurer health care markets, or otherwise incur a tax disincentive amounting to no more than the cost of such private insurance coverage. The Petitioners in the case, including the State of California, other states (including Illinois, New York, New Jersey, Connecticut and Massachusetts) joining California, want the Supreme Court to overturn a decree of the lower courts which found that the individual mandate (after a Republican-controlled Congress enacted an amendment to the ACA in 2017 that set the penalty for not buying health insurance to zero, but it left the rest of the ACA in place) was a critical provision of the ACA and, without it, some or all of the ACA was unconstitutional as an improper use of Congress′s taxation powers. The Respondents in the case, including the State of Texas, other states (including Florida, Georgia, Tennessee, Arizona and Utah) joining Texas, and the Trump Administration, naturally want the Supreme Court to interpret the text of the 2017 amendment to the ACA (which effectively zeroed the tax disincentive attached to the ACA’s “individual mandate”), to mean that the entire ACA should be invalidated by the Court because the mandate cannot be “severed” from the rest of the Act. At the oral arguments held on November 10, the more liberal judges revealed a predilection that the Court prior decision, in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), which upheld the ACA’s individual mandate as a constitutional use of the government’s taxing and spending powers, entails that after the ACA’s amendment in 2017 reduced the penalty for not buying health insurance to zero, the individual mandate (which remains a demand and not merely a request) is now less coercive on employers and responsibly employed adults than before, so there appears to be no basis to the constitutional challenge. But Texas and the Trump Administration argue that the Court should interpret the individual mandate to have been effectively withdrawn, if not retracted, by Congress’s 2017 amendment, with the result that, as per the Court’s decision in National Federation of Independent Business v. Sebelius, since the federal government’s individual mandate to purchase private insurance, and to make use of the health care network erected by the ACA is not, without constituting a constitutional use of the government’s taxing and spending powers, authorized either by the government’s limited power to regulate interstate commerce or to regulate an existing interstate regulatory scheme, the existing ACA constitutes nothing more than an unconstitutional use of the government’s power to regulate private commercial activities. Pay close attention to the following interchange at the oral arguments on November 10, between between Mr. Kyle D. Hawkins, Solicitor General of Texas, on behalf of Texas, et al. and the Hon. John Roberts, the Chief Justice of the U.S. Supreme Court: MR. HAWKINS: “… Under NFIB versus Sebelius, the mandate as it exists today is unconstitutional. It is a naked command to purchase health insurance, and, as such, it falls outside Congress′s enumerated powers. And the legislative findings declaring the mandate essential, require this Court to conclude, as did the district court below and the joint dissent in NFIB, that the mandate is inseverable from the remainder of the law. In asking the Court to hold otherwise, Petitioners are really asking this Court to ignore statutory provisions in the U.S. Code. Petitioners instead prefer to hypothesize about what various legislators might have been thinking when they voted to eliminate the penalty provision yet retain the mandate and the legislative findings. But that′s just an argument that this Court should set aside the text of the law in favor of non-textual considerations. That gets things exactly backwards, as this Court has confirmed time and again in recent years. There is no basis to ignore the words that Congress enacted and that remain operative today. The proper course is to take Congress at its word and declare the mandate unconstitutional and inseverable from the remainder of the ACA.” CHIEF JUSTICE ROBERTS: “General Hawkins, on the severance question, I think it′s hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act. I think, frankly, that they wanted the Court to do that. But that′s not our job.” MR. HAWKINS: “Well, Mr. Chief Justice, I would respectfully submit that it — it is this Court′s job to follow the text of the law as written. And I think it′s critical that in 2017, Congress could have excised the legislative findings in 18091, but it chose not to do so. It could have excised –″ CHIEF JUSTICE ROBERTS: “Well, but I mean — I — I certainly agree with you about our job in interpreting the statute, but, under the severability question, where — we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.” MR. HAWKINS: “I don′t think so, Mr. Chief Justice. I think what that establishes, or at least one reasonable reading of what happened, is that Congress wanted to give the American people a tax cut, and it went through lots of provisions of the Internal Revenue Code cutting taxes here and there, and one place it found to give the people a tax cut was in 5000A(c), but it wanted to keep that mandate in place because the mandate would still drive people to acquire insurance. And, indeed, it would have been quite reasonable for Congress to conclude that simply having a mandate will lead people to sign up for health insurance. As originally enacted, the Affordable Care Act included groups of people who were subject to the mandate but exempt from the penalty, including the very poor and members of Indian tribes.“ The above colloquy between Texas Solicitor General Hawkins and Chief Justice Roberts may be listened to starting at exactly 57:20 (scroll ahead to 57 minutes and 27 seconds) into the pod cast of the tape-recorded oral arguments on November 10, archived @ https://www.supremecourt.gov/oral_arguments/audio/2020/19-840 Thus, the late Justice Antonin Scalia warned us that judicial interpretation of public law must not usurp, in a democratic republic, the authority proper to the lawmaking body, the legislature, and should faithfully render only what the legislature meant in framing the law in a certain textual context. And Scalia warned judges that they should not misapply the attitude of common law judges to the task of judicially interpreting statutory language. Judicial interpretation of statutory language may, and often does, have Constitutional dimensions. In effect the federal courts should avoid, said Scalia, in interpreting the Constitution and the public law, the doctrine of “pragmatic realism” urged by Oliver Wendell Holmes, Jr. in the latter’s discussion of negligence, for example, in Chapter Three of The Common Law (1881), a reading that we discussed several weeks ago. It was in respect to the common law, not constitutional law, that Holmes had observed “The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago.” Scalia goes on in his essay to frame the issue, for purposes of our Discussion Forum, as follows (see p. 181 in the David Adam’s version of the text): “[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called ‘The Living Constitution’, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and ‘find’ that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.” Professor Ronald Dworkin replies, in essence, in the following way (see p. 187 in the David Adam’s version of the text): “Scalia argues that the First Amendment should be read not as abstract but as dated—that it should be read, that is, as guaranteeing only the rights it would have been generally understood to protect when it was enacted. He makes three points: [1] first, that since many parts of the Bill of Rights are plainly concrete— the Third Amendment’s prohibition against quartering troops during peacetime, for example—the ‘framers’ probably intended to make them all so; [2] second, that the ‘framers’ would presumably be anxious to insure that their own views about free speech were respected even if later generations no longer agreed; and, [3] third, that in any case the ‘framers’ would not have wanted to leave the development of a constitutionalized moral principle to judges. “These are all arguments for ignoring the natural semantic meaning of a text in favor of speculations about the expectations of its authors, and the Scalia of the pre-constitutional part of these lectures would have ridiculed those arguments. [1] First, why shouldn’t the ‘framers’ have thought that a combination of concrete and abstract rights would best secure the (evidently abstract) goals they set out in the preamble? No other national constitution is written at only one level of abstraction, and there is no reason to suppose the authors of the Bill of Rights would have been tempted by that kind of stylistic homogeneity. [2] Second, as I said, Enlightenment statesmen were very unlikely to think that their own views represented the last word in moral progress. If they really were worried that future generations would protect rights less vigorously than they themselves did, they would have made plain that they intended to create a dated provision. [3] Third, we must distinguish the question of what the Constitution means from the question of which institution has final authority to decide what it means. If, as many commentators think, the ‘framers’ expected judges to have that authority, and if they feared the consequences for abstract rights, they would have taken special care to write concrete, dated clauses. If, on the contrary, they did not expect judicial review, then Scalia’s third argument fails for that reason.” Dworkin thus defends the propriety of the appellate courts in looking to emergent trends of evolving public morality in our contemporary world for purposes of “discovering” the meaning of the original language of the sentences and clauses with which the founding fathers framed their expectations as to how they would be understood in future generations. Succinctly, he responds to Scalia’s concerns about potential “judicial activism” with three main points defending the doctrine of judicial recognition of “evolving standards of justice and fairness: [1] we may reasonably infer that the ‘framers’ thought that a combination of concrete and abstract rights (expressed in more or less flexible terms) would best secure the goals and ideals they set out to preserve, [2] Enlightenment statesmen were unlikely to think their own views represented the last word in moral progress, and [3] we may reasonably infer that the ‘framers’ expected that future judges would have the authority to interpret the original meaning of the sentences and clauses of the Constitution, and [4] if the framers of the Constitution feared the consequences of potential misinterpretation of their meaning by future judges, they would have taken special care to use more concrete, as opposed to more abstract or flexible language. In anticipation of the questions that you are asked to address in our Discussion Forum, I will briefly expand here on certain additional points of the Scalia—Dworkin debate. The specific questions for our Discussion Forum address points made by Justice Scalia in the second of our required reading assignments for this week. [2] Justice Antonin Scalia dissenting (joined by C.J. William Rehnquist and Justice Clarence Thomas) in Lawrence v. Texas, 539 U.S. 558 (2003), 539 U.S. 558, 123 S. Ct. 2472.pdf First, Scalia says that treating a fundamental standard of justice in the Constitution as “evolving” renders what is fundamental “nonhistorical,” because what is “fundamental” is constitutive (intended for structuring future lawmaking) rather than regulative (intended as lawmaking in itself), and therefore not subject to change. The reply would be as follows: But what is evolving can still be historical, because an evolving standard of justice can take root as fundamental at some time in history, and at that later time in history confer rights subject to protection. Second, Scalia says that treating “due process” as a fundamental standard of justice in itself in such a way that it entitles persons to certain derivative rights such as the right to be free from governmental intrusions on one’s privacy, renders such privacy rights “nonfundamental,” because by due process is meant only a procedural standard, and therefore does not affect substantive rights. The reply would be as follows: But due process is a fundamental standard of justice in the Constitution, to which all laws must conform by protecting our civil rights, and such rights may have taken root, historically, either as fundamental or derivative, although some privacy interests, such as to elective abortions for reasons otherwise than to protect the life of the pregnant woman, or adult consensual intimacy other than in the marital bond, may be derivative and therefore subject to reasonable regulation. Third, Scalia says that treating individual privacy interests, such as personal decisions to elect an abortion for reasons other than to protect the life of the pregnant woman, or to engage in adult consensual intimate relations other than in the marital bond, as subject to protection where prevailing public morals and democratic lawmaking proscribe them, renders public standards of justice unenforceable and undermines the democratic process. The reply would be as follows: But such public morality and such laws as may proscribe the exercise of such privacy interests, may, under certain circumstances, be outweighed by correlative governmental interests in protecting individual autonomy in such decisions, as when such laws unduly restrict, through the imposition of unreasonable obstacles, the exercise of such personal autonomy. FOR PURPOSES OF OUR DISCUSSION FORUM for Week Twelve (Nov 16—30), you are asked first to read [2] Justice Antonin Scalia dissenting (joined by C.J. William Rehnquist and Justice Clarence Thomas) in Lawrence v. Texas, 539 U.S. 558 (2003), 539 U.S. 558, 123 S. Ct. 2472.pdf and then here, in your contributing post(s) state your best points and arguments in defense of EITHER Thesis A or Thesis B for EACH of the following issues 1, 2 and 3: 1. Thesis A: Scalia says that treating a fundamental standard of justice in the Constitution as evolving renders what is fundamental nonhistorical, because what is fundamental is constitutive rather than regulative, and therefore not subject to change. Opposing thesis B: But what is evolving can still be historical, because an evolving standard of justice can take root as fundamental at some time in history, and at that time in history confer rights subject to protection. State your reasons for agreeing with either Thesis A or the Opposing thesis B. Then prove the rightness of your preference by illustrating your position with regard to some civil right (the recognition of which right may be uncertain or undetermined in certain states), such as the alleged right to elective abortions for reasons otherwise than to protect the life of the pregnant woman, or the alleged right to engage in adult consensual intimacy (including LGBT relations) outside the marital bond. 2. Thesis A: Scalia says that treating due process as entitling persons to certain derivative rights such as privacy renders such privacy rights nonfundamental, because by due process is meant only a procedural standard, and therefore do not affect substantive rights. Opposing thesis B: But due process is a fundamental standard of justice in the Constitution, to which all laws must conform by protecting our civil rights, and such rights may have taken root, historically, either as fundamental or derivative, although some privacy interests, such as to elective abortions for reasons otherwise than to protect the life of the pregnant woman, or adult consensual intimacy other than in the marital bond, may be derivative and therefore subject to reasonable regulation. State your reasons for agreeing with either Thesis A or the Opposing thesis B. Then prove the rightness of your preference by illustrating your position with regard to some civil right (the recognition of which right may be uncertain or undetermined in certain states), such as the alleged right to elective abortions for reasons otherwise than to protect the life of the pregnant woman, or the alleged right to engage in adult consensual intimacy (including LGBT relations) outside the marital bond. 3. Thesis A: Scalia says that treating privacy interests such as personal decisions to elect an abortion for reasons other than to protect the life of the pregnant woman, or to engage in adult consensual intimate relations other than in the marital bond, as subject to protection where prevailing public morals and democratic lawmaking proscribe them, renders public standards of justice unenforceable and undermines the democratic process. Opposing thesis B: But such public morality and such laws as may proscribe the exercise of such privacy interests, may, under certain circumstances, be outweighed by correlative governmental interests in protecting individual autonomy in such decisions, as when such laws unduly restrict, through the imposition of unreasonable obstacles, the exercise of such personal autonomy. State your reasons for agreeing with either Thesis A or the Opposing thesis B. Then prove the rightness of your preference by illustrating your position with regard to some civil right (the recognition of which right may be uncertain or undetermined in certain states), such as the alleged right to elective abortions for reasons otherwise than to protect the life of the pregnant woman, or the alleged right to engage in adult consensual intimacy (including LGBT relations) outside the marital bond. Again, you are asked first to read [2] Justice Antonin Scalia dissenting (joined by C.J. William Rehnquist and Justice Clarence Thomas) in Lawrence v. Texas, 539 U.S. 558 (2003), 539 U.S. 558, 123 S. Ct. 2472.pdf, and then here, in your contributing post(s) state your best points and arguments in defense of EITHER Thesis A or Thesis B for EACH of the above issues 1, 2 and 3