The Legacy of Antonin Scalia

(... the recent comments by President Obama and Lief Carter have caused me to compose this).

 You can't say whether Scalia was a good judge until you first tell us whether you agree with Philip Bobbitt, Dennis Patterson or the Wittgenstein-Dworkin construct in The Flexible Constitution.

 Bobbitt tried to say that good judging was ultimately a matter of conscience put in the right format. Scalia would be very good by this measure. Deeply held convictions put forth in a legal form. But Patterson says that Bobbitt's standard is too private: you can't be good merely because you have listened to your inner voice. Much like Tractarian Wittgenstein, this relegates too much to the closet (unsayable). But Patterson didn't himself have a credible solution. He thought you could sort of "debate-score" judicial reasoning. 

 For me, Scalia was a terrible judge. And he was terrible because his decisions relied upon intellectual behaviors that were dominant in history at least one century prior to his time on the bench. He used an a-priori format, syllogistic reasoning, formalism, and took positions about language that had been badly discredited in the time in which he lived. In fact, he is known for inventing the concept of original meaning, which was always an intellectually flawed idea. He reminded me of the character "Dr. Zaius" in the 1968 movie, Planet of the Apes, because of these behaviors. 

 He had a blatant contradiction in his philosophy about text when talking about statutes versus the Constitution. Rather than deal with the problem, he tried to cover it up with rhetoric. And he would blatantly politicize judicial business by giving speeches at conservative organizations like the Federalist Society. In an age when the 60's generation had academically constructed courts of politics, judges like Scalia were given social license to be ostensible representatives of political convictions. You could no longer criticize him for that. And this was a shame, because, if there ever was a Segal-Spaeth-Segall justice in real life, it was Antonin Scalia. He was, in truth, the exemplar of this academic fiction. 

 And so, neither Bobbitt nor Patterson can help us judge Scalia. We would rather say that, using a Dworkinian standard, that he was no Hercules. And that, using Wittgenstein, he was never very good at making aesthetical judgments in constitutional law, because, frankly, he did not understand that this was in fact what the behavior was.

Speaking on Constitution Day

At Wright State, on September 17th, I'll give a short talk touching upon key themes in three books: (1) Constitutional DisobedienceLouis Michael Seidman; (2) FramedSandy Levinson,and (3) The Flexible Constitution, Sean Wilson. 


The American Constitution is neither old nor unwise. It's central problem lies only in the way that a certain generation of law school professors are starting to imagine it. The document wasn't considered "old" when Ronald Dworkin was king of the American legal mind. And it isn't the last 15 to 20 years of age that has finally hampered the parchment; it's the fact that American law professors have been having a very poor conversation for nearly two decades. The latent cause of all of this is the rise of originalism. Only if originalism wins does the Constitution become "too old." And one wonders if scholars like Louis Seidman and Sandy Levinson aren't silently rooting for conservative professors to forever bury the life of the Constitution into the dirt of history. For doing this would take away the inherently dynamic and flexible nature of the open-ended and undefined provisions. It would, in a manner of speaking, take away the constitutional imagination -- and in so doing, make Americans falsely think they are stuck with a document that is "old." 

Where and When: 

Interview by The Junto

Some may know that The Junto is a group blog about early American history. Today, it talks about using history to make constitutional law, focusing on Gordon Wood, Scott Gerber  and my book.

Some may be interested in the full interview on the subject here:

The interview explains why constitutional judgment should be understood as an artisan judgment, and why history isn't anything special to the venture. The discussion is very relevant to the prejudices that political scientists very often exhibit in this area. In fact, as between the following ideas that are out there -- judging as historic accuracy (originalism), as political attitudes/ideology (cynical view) or as compelling moral principles (Dworkin) -- the idea of connoisseurship presents a new way to move forward. It seems to resolve many of the problems.

The New Originalism, Online

... I just wanted to mention that I've got some lectures up about the new originalism (with slides). Click the picture to see the slide or click "Full Size" to hear it talk.

One of the things that I think is key in this area is not letting these people have their language. It's a blatant lie (orthodoxy) to tell students that old originalism is about "framer intent" and new originalism is about "original meaning." What must be taught, instead, is that this is merely a way of speaking -- and a contrived one at that. Truth is, "new originalism" amounts to four simple (and confused) philosophic positions:

1. That classical legal thought should be re-imposed ("original methods originalism")
2. That the Constitution is really a toast to an old society (hegemony)
3. That plain language harbors fixed substantive content (misinformation)
4. That the Private Language Thesis is true.

Note that 3 and 4 are terrible dogmas about language. I couldn't believe my eyes when I saw Stanley Fish, Keith Whittington and Larry Alexander endorsing a private language thesis. And Whittington did so under the strange belief that Wittgenstein supported him (?), something that became a terrible falsehood in some circles, as evidenced by John O'Neil's 2005 book (p. 195). How these scholars came to see Wittgenstein as believing that language meaning was ultimately the secret intention of an author who gave life to barren marks, I will never understand. It was always culture (a learned orientation) that gave life to marks. Anyway, that has to go down as one of the worst intellectual mistakes ever made by a an entire community of scholars (proponents) for well over a decade.

And so, what we have here are two very false claims about language, and two other claims (1 and 2 above) that are so "out there" as to be horribly incongruent with current orientations. Please don't tell your kids that the new originalism is about an "original meaning." Tell them the truth: it's about 4 terrible theses about language and jurisprudence.   

Regards and thanks.

Long Live Ronald Dworkin

Ronald Dworkin was simply the greatest legal philosopher of our time. His philosophical acumen was far superior to his detractors. He had a beautiful mind that challenged the philosophic capacities of many American legal scholars who wasted their thoughts on lazy philosophical orientations (e.g., pragmatism, critical legal studies).  Many of his critics, to this day, still can't get it.  I, myself, owe a great deal of my orientation about jurisprudence to Dworkin.  I'm a Wittgensteinian first, to be sure, but I found a way to make these two have an intellectual offspring. When one looks at where the serious thinking is about law, all roads travel through Dworkin's thoughts. 

The Flexible Constitution, Live

There is a special course being offered by the author. The first few lectures are introductory for the students: they do not involve the book, But, beginning with the lecture "Flexible Commands," the book's arguments are presented. They appear on this webpage (below). Note: to see different lectures, click at the bottom of the right hand column, below the "lecture player." To hear the slide talk, press "Sound: play."

Dictionaries, Justices & Wittgenstein

(Replying to Helen's mail below)
... Professor Baum's assertion is no doubt correct. But if the justices or their clerks simply understood Wittgenstein, they wouldn't be pulling out a dictionary as though it were a law book for what they want a word to mean. 

One of the things I wonder is how accessible the stuff in my book is, particularly Chapters 4 and 5. I mean, it's all right there. People think that, somehow, being into Wittgenstein is esoteric or for academics only. I think Sandy said recently on conlawprof that the Constitution was flexible only in the world of an "academic theory" of language. Truth is, though, the stuff should be relevant to lawyers and judges. I contend that it could be taught as a CLE seminar (continuing legal education).  All that happens to people who "get it" is that they stop doing certain foolish intellectual behaviors, like pulling out the dictionary to tell someone what a word means, when they don't have a foreign language problem.

There is also some good stuff about dictionaries in Lawrence Solan's book, The Language of Statutes. 

But I just wonder what would happen if people who trained lawyers and judges would stop painting the legal opinion to be about craft and rhetoric, and would start making it be about how insightful (cognitively) a person can be. If justices understood Wittgenstein, they'd know when to pull out "the dictionary" and what to use it for.  

Regards and thanks.

Dr. Sean Wilson, Esq.


Sent: Monday, February 4, 2013 8:45 PM
Subject: Washington Post on justices and dictionaries

Some members of this list might be interested in Robert Barnes's interesting piece, in yesterday's Washington Post, about Scotus justices' references to dictionaries in their opinions:

(Of particular note to this list is that the article spotlights a new study, about the subject, coauthored by listmember Larry Baum (congrats to him))