I didn’t mean for Antonin Scalia to be a major character in my book. I was just going to write about an interesting math snafu that shows up in one of his capital punishment opinions. But then that led quite naturally into talking about “formalism,” which many mathematicians use (or think of themselves as using) as their everyday philosophy of math, just as Scalia used it (or thought of himself as using it) as his everyday philosophy of jurisprudence.
Legal reasoning is not much like math. But Scalia sometimes acts like he thinks it is. That’s what makes him an interesting figure to me. He writes down arguments which he presents as derivations axioms — as if the words of the Constitution determined the resolution of the legal question, so long as you were willing to apply them methodically and impartially in the correct sequence.
But surely that’s wrong! The words of the Constitution underdetermine a lot of really interesting questions. Richard Posner:
Most of the cases the Supreme Court agrees to decide are tossups, in the sense that they cannot be decided by conventional legal reasoning, with its heavy reliance on constitutional and statutory language and previous decisions. If they could be decided by those essentially semantic methods, they would be resolved uncontroversially at the level of a state supreme court or federal court of appeals and never get reviewed by the Supreme Court.
I have written before about the Court’s decision that statistical sampling in the Census is in conflict with the relevant Constitutional clause:
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
Scalia’s opinion concentrates on the word “enumeration,” which he argues does not mean “determining the number of,” but rather should be understood in the more restrictive sense of “counting one by one.” And he has some good contemporary sources for this reading! You get a nice satisfying no-nonsense feeling, reading this opinion. Then you start to think about what it actually says. Is Scalia declaring that constitution requires that the census count people one by one? Can’t be — for the last fifty years the census has been conducted mostly by mail. Does he think the census has to enumerate something, but it doesn’t have to be people? Could it be anything? Could it be “all property owners?” Could it be “all non-atheists?”
Note, too, that when you fill out the census form, you write down the number of people in your household, then you fill out information for each person. When the numbers are compiled, the computer, surely, adds up the numbers from each form to get an answer. In other words: a mathematical process other than enumeration-in-the-narrow-sense whose output is an approximation to the total number of people in the United States. Kind of like statistical sampling. Except not as good an approximation.
I don’t think we should consider that process unconstitutional. It seems reasonable to consider it an enumeration, despite the inconsistency with some dictionary definitions. Because dictionary definitions aren’t mathematical definitions. A mathematical object is exactly what it is, and nothing else. But when we read a word, we make a choice.
Scalia makes one choice: we could also opt for a more expansive but equally common-sensical definition of “enumerate” as “determine, to the extent possible, the number of,” which permits statistical sampling aimed at counting the “whole number” of Americans. That “whole” is a word in the Constitution too, with as much binding force as “enumeration.” It doesn’t appear in Scalia’s opinion.
Am I saying Scalia’s opinion in Dept. of Commerce vs. U.S. House of Representatives was wrong? No; I’m saying merely that it’s not the kind of opinion it presents itself as being. It is not determined by the text before it. It relies, elsewhere, on an argument from pragmatism: if statistical sampling is constitutionally permissible, then legislatures might authorize it, and the resulting partisan wrangling over methodology would create hard cases for future courts. These are fair arguments, but they’re not textual arguments. The argument admits that we make choices when deciding what words mean, and we should let our choices be guided by their likely consequences.
But no, I don’t think those arguments are obviously wrong. It is pretty rare to find Scalia being obviously wrong. Except in the following higher-level sense. Scalia seldom concedes that the questions he faces are authentically difficult. He — or at least the character of “Scalia” he plays in the opinions — lacks the humbleness appropriate to the task. His habit is to present his conclusion as if it’s obviously right, the way a mathematical proof, once you understand it, is obviously right. That is obviously wrong.
Update: Commeter aaaatos makes a really important point, one I meant to address directly in the post. He writes: “what makes the legal system so useful to mankind is the fact that therein law is treated in a formalistic way as much as possible, i.e. as if it were mathematics.” This points to another plausible account of Scalia: that he didn’t actually believe law was very much like math, but felt it was best practice for judges to pretend to believe that. That’s what I was getting at with the distinction between Scalia the person and “Scalia,” the persona he adopts as a writer of opinions.
Why pretend? Partly because it enhances the authority of the process; partly because pretending to believe it helps us be “as formalist as possible,” mildly constraining the inevitably biased choices we make when we read words and try to obey them.
This got long so let me put a footnote here. Yes I know that Scalia is not claiming in Commerce v. House that sampling in the census is unconstitutional. (I believe that question has still not been directly addressed by SC.) He is arguing that a statute which seems to allow sampling actually doesn’t, so he is arguing that sampling is “arguably” unconstitutional, and that the constitutional questions give weight to the view that the statute doesn’t actually allow sampling.
Jurisprudence cannot be like mathematics, as they tolerate inconsistencies. “Such and such law is in the books but is unconstitutional but can only be scrapped if there is a challenge”. Maybe they operate on intuitionistic logic and don’t accept the law of excluded middle.
Hmm, the Posner quote argues that cases appearing before the SCOTUS are filtered through a process that eliminates those which can be decided based on math-like reasoning. This supports your argument that Scalia was wrong in his meta-thinking, but also tells us that SCOTUS cases are a biased sample and we need to be cautious about using it to draw conclusions about jurisprudence more generally.
As a side point, I think Scalia’s philosophy could be seen as a sibling of algebraic intimidation. Compared with the other two branches of government, the judicial branch has a legitimacy problem: top judges are not elected and they often face cases which overturn actions of elected officials. The Constitution is an obvious source of legitimacy, perhaps this is one reason that literalism is popular within the branch. Scalia’s formalism is another approach, essentially saying to a doubter: “you don’t agree with me, well . . .MATH . . . so there!”
Frankly, from what I ever read of Scalia’s writings I thought he routinely practiced the “Texas sharpshooter fallacy” (circling the bullet holes on the barn with a target, after-the-fact, to give the appearance of being a sharp shooter) — he knew his opinion well beforehand, and then gathered together those arguments that supported his particular opinion (not uncommon for any of us really). As such I think he was consistently over-rated as either a legal thinker or a well-crafted writer.
You’re basically saying that only in mathematics definitions are perfectly rigorous, so we can’t apply mathematical thinking to real-life issues such as law. But in my experience, what makes the legal system so useful to mankind is the fact that therein law is treated in a formalistic way as much as possible, i.e. as if it were mathematics. So it might just be possible your own meta-thinking is off here, not Scalia’s.
Should it be possible to draft a law or a constitutional provision in a formalistic way, sometimes? “For this law, I mean what I mean and if it is later found to defy common sense then avail yourself of processes for correcting that error *other than* judicial [re]interpretation.”
On enumeration, is it possible they really meant that but just didn’t understand stats?
I think your original description of Scalia’s judicial philosophy is overly simplistic, though your update is closer to the truth.
I recommend reading Scalia’s classic essay “The rule of law as a law of rules”, available on jstor here: http://www.jstor.org/stable/1599672
This essay really isn’t about constitutional law per se, but rather about the proper role of judges (where his point of view is more nuanced than one might expect).
[…] (Continued from yesterday’s post.) […]