Originalism and Relativism

You wouldn't really think that Justice Antonin Scalia is someone who buys deep into relativism, would you? I think he has a pretty clear notion that some ideas or cultures are just better or more correct than others. But it just occurred to me that a big part of his argument for originalism, or his version of it anyway, depends on an assumption of relativism, or even an assumption of an assumption of relativism. (Note: I'm defining relativism to mean the denial that truth can have meaning independent of people's beliefs.) In discussing "faint-hearted" originalism, the notion that the doctrine may sometimes suggest results too severe to contemplate, Scalia uses the example of the Eighth Amendment, saying that there might be some punishments that even judges who view themselves as originalists would find unconstitutional even if it could be definitively shown that in 1791 they were not considered cruel or unusual, such as public flogging or branding. Here's his quote on how to justify that faint-heartedness:

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content—that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.”

Notice here that he thinks the only options are "viewed as cruel and unusual when this clause was enacted" and "viewed as cruel and unusual when this clause is being applied." For anyone except a relativist, it would seem that there would be a third option: "actually cruel and unusual"! There is a damn good reason why he avoids this option: because it gives a lot of validity to the "evolutionary" or "living" reading of the Constitution.

Suppose what was originally understood by the phrase "...nor cruel and unusual punishments imposed" was nothing about the sentiments of a certain age, but rather the idea that punishments which are "in truth" cruel and unusual must not be imposed. This obviously depends on the idea that it makes sense to talk about something's being cruel and unusual "in truth," but this idea is simply the rejection of relativism. But now here's the rub: if we're supposed to determine whether a punishment is really cruel and unusual, does it make sense to say, "well, in my own considered opinion this punishment is cruel and unusual, but I acknowledge that most men in 1791 would not have thought it was, so I'll vote to uphold it."? I don't think so. Because, as my philosophy of law professor is fond of saying, if you believe that this punishment is cruel and unusual, then you believe that it is true that this punishment is cruel and unusual. And the question you're being asked is whether it is True that the punishment is cruel and unusual. There is literally no possible approach to this question other than to form your own considered opinion, with a healthy dose of Ronald Dworkin's moral philosophy thrown into the cogitative mix.

This, by the way, is how I interpret Professor Steven Calabresi's idea that we should look for the originally-understood rule or principle embodied by a certain clause, but bear in mind that the generation which enacted that clause may have misunderstood or misapplied that principle. There's no greater example of the necessity of this idea than the Equal Protection Clause, which it is generally conceded was not originally understood to prohibit segregation. But if what the people of 1868 meant by "no state shall ... deny to any person within its jurisdiction the equal protection of the laws" was not "no state shall do anything that we would think was a denial of equal protection of the laws" but rather "no state shall do anything which actually is a denial of equal protection of the laws," then this fact has no force, and segregation is every bit as unconstitutional as it is plainly an actual denial of the equal protection of the laws.

Scalia's denial that this is a possibility constitutes something more than an embrace of relativism. I'm not even sure it is an embrace of relativism. But it is an assertion that no one can ever not be a relativist, or at least that the vast majority of Americans throughout our history have been relativists. I'm fairly certain, however, that this is patently false! And if it is false, then Scalia's argument for his brand of originalism falls away, and we're left with something like Calabresi's kind of originalism, or a pure "dictionary-originalism," of the sort that one of my readings referred to as "trivially true" because it is easy to express a left-wing, living constitutionalism doctrine in terms of such "originalism."

Moreover, there's a good reason for people involved in creating a constitution to view it as embodying eternal truths rather than preserving their own idiosyncratic opinions forever, as if in amber: to do so is to recognize one's own fallibility. If you actually want there not to be any cruel and unusual punishments, then as long as you recognize that you might be wrong about what constitutes a cruel and unusual punishment, and also that your opinions on the matter are likely to have been shaped by your generation in certain arbitrary ways, you will want to empower future generations to view the Eighth Amendment as embodying an eternal truth, and to do their best to discover that truth. Hopefully they'll do it better than you, and if not, if the moral standards of the people decay over time, then honestly you're just going to be screwed whatever you do. I think there's a fair amount of evidence that our Founders did indeed recognize this idea, and in any event the principle saying that, out of a certain kind of deference, you should assume the framers of a law were good and decent people would instruct us to assume that they recognized their own fallibility in this way.