Tag Archives: enumeration

Antonin Scalia thought jurisprudence was more like math than it really is

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.



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