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Antonin Scalia’s Constitutional Textualism: The Problem of Justice to Posterity* by Dr. Bruce E. Auerbach and Michelle Reinhart

bstract: Antonin Scalia defends his mandates or prohibitions the institutional explicit purpose of binding future genera- textualist approach to interpreting arrangements and practices of the Framers’ tions to the constitutional arrangements they the Constitution by asserting that generation.4 For this purpose to be fulfilled, created. theA purpose of the Constitution is to restrict the the justices of the Supreme Court must read We argue that the absence of any range of options open to future generations by the language of the Constitution according language in the document itself indicating enshrining institutional arrangements and to its “original” meaning. In some situations, that the Constitution was ordained in the practices in constitutional mandates or prohi- Scalia suggests, there will be disagreement as name of future generations, or any state- bitions. For this purpose to be fulfilled, justices to the original meaning. In other situations ments that it was established to bind future of the Supreme Court must read the language generations, weakens Antonin Scalia’s claim of the Constitution according to its original there will be disagreement as to how that the Constitution must be interpreted meaning. We argue there is little reason to be- that original meaning applies to new lieve that Scalia’s understanding is correct. and unforeseen phenomena. … But the “Antonin Scalia’s view that the role Neither the language of the Constitution nor difficulties and uncertainties of deter- of the judge is to reconstruct and the writings of Jefferson or Madison are con - mining original meaning and applying impose the original meaning of the sistent with Scalia’s interpretation. More im- it to modern circumstances are negligi- language of the Constitution… portantly, the goal Scalia posits, of seeking to ble com pared with the difficulties and represents an intergenerationally restrict the range of options open to future uncertainties of the philosophy which unjust approach to constitutional generations, is intergenerationally unjust. says that the Constitution changes, that interpretation.” the very act which it once prohibited it I. Introduction now permits, and which it once permit- according to the ‘original’ understanding of United States Supreme Court Justice Antonin ted it now forbids; and that the key to the text, when that understanding no longer Scalia’s approach to constitutional inter- that change is unknown and unknowable.5 makes sense to us. Te Framers were not in pretation, which he calls “textualism”, is as a position to foresee the needs of future gen- controversial as it is influential. On the one Te question we raise is whether Anton- erations, nor the circumstances in which hand, its conservative supporters regard en- in Scalia’s understanding of the purpose of their descendants would live; nor could they dorsement of textualism as a virtual require- the Constitution is correct, and if so, have understood the values of their remote ment for confirmation to the federal bench. whether it would be legitimate. Applying descendants, or their linguistic usages. Con- On the other hand, critics point out that concepts from the literature on intergenera- sequently, it would have been unjust of the Scalia’s approach is entirely extra-constitu- tional justice, we argue that the very purpose Framers to have bound future generations to tional,1 and that historical meanings are suf- Justice Scalia posits for the Constitution – to the constitutional arrangements they estab - ficiently obscure and open to interpretation bind future generations to the institutions lished, without providing the flexibility to to allow Scalia to tailor textual interpreta- and limitations on the use of power the reinterpret the Constitution in a manner tion to his policy preferences.2 Framers thought appropriate – constitutes an that made sense to later generations.6 Te Justice Scalia has defended his theory of injustice to future generations. Moreover, amendment process alone is insufficient. constitutional interpretation against his cri- neither the text of the Constitution nor the Te ability of future generations to reinter- tics vigorously in articles, speeches, and Su- writings of the Framers support the under- pret the Constitution for themselves is preme Court opinions. Scalia justifies his standing of the purpose that Justice Scalia essential to the intergenerational legitimacy ascribes to the Framers. Te institutions and of the Constitution. “The very purpose Justice Scalia limitations on power they incorporated into We argue that Antonin Scalia’s view that posits for the Constitution – to the Constitution did not have the primary the role of the judge is to reconstruct and im- bind future generations to the purpose of restricting future generations, but pose the original meaning of the language of institu tions and limitations on the rather of restricting themselves. Tey under- the Constitution, even in situations in which use of power the Framers thought stood, of course, that if the Constitution that meaning is no longer accepted, represents appropriate – constitutes an were successful and endured, future genera- an intergenerationally unjust approach to injustice to future generations.” tions would inherit that document and the constitutional interpretation. If the Framers institutions it created. Tey fervently hoped did not in fact seek, and could not legiti- “textual originalism”3 by the assumption that that future generations would view their mately have sought, to bind future genera- the purpose of the Constitution is to restrict actions as wise and beneficial; but the tions to their understanding of the the range of options open to future genera - Framers did not claim to act in the name of Constitution, it is difficult to understand on tions by enshrining in constitutional future generations, nor did they act with the what authority current members of the U.S.

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Supreme Court would bind us to abandoned purpose of a written constitution.”12 If laws d o c u m e n t . 16 Te situation is very different moral and linguistic understandings, such as the were meant to change meaning and applica- with respect to future generations. Future standards for “cruel and unusual” punishments tion over time, Scalia argues, it would make generations cannot be consulted about the or “due process of law” that prevailed in 1787. more sense for old restrictions to be lifted terms of a constitution, nor can they give instead of new restrictions added, but just their consent to that document, except long II. Antonin Scalia’s Approach the opposite is the trend in modern consti- after it was written and adopted. At that to Constitutional Interpretation tutional law. “Less flexibility in government point consent to the Constitution is not free Antonin Scalia advocates what he calls a instead, not more… No, the reality of the and voluntary, but constrained by the very “textualist” approach to the interpretation of matter is that, generally speaking, devotees existence of the Constitution and the insti- the Constitution. Textualism consists of in- of Te Living Constitution do not seek to tutions that rest upon it, and by the dangers terpreting a statute or the Constitution ac- facilitate social change but to prevent it.”13 posed by abandoning those institutions. cording to “the original meaning of the Nor is it necessarily the case that the Con- text.”7 Scalia contrasts his commitment to stitution “evolves” in the direction of greater “Had the Framers claimed to have interpreting a text based on the original individual rights. We value some rights, such acted in the name of posterity, meaning of the text’s language with both the as property rights and the right to bear arms, there would be grounds for holding search for the (original) intent of the authors less than the Founders did. that the Constitution is an of the text, and the view that a document intergenerational contract… the ought to be interpreted according to its But this just shows that the Founders Framers made no such claim, and current or evolving meaning. were right when they feared that some surely they would have seen such a Antonin Scalia rejects the search for the (in their view misguided) future genera- claim as hubristic.” original intent of the draftsmen of a law or tion might wish to abandon liberties the Constitution, and claims also to have that they considered essential, and so Significantly, the Framers “ordained and long ceased using legislative history to dis- sought to protect those liberties in a Bill established” the Constitution in the name of cover the intent of the drafters in deciding of Rights. We may like the abridgement “We the People of the United States” and cases.8 Scalia contends that textualism is very of property rights and like the elimina- not in the name of themselves and their po- different from original intent. Te doctrine tion of the right to bear arms; but let us sterity. Te Preamble does clearly express of interpreting the Constitution according not pretend that these are not reductions the hope that the Constitution will secure to the original intent of the Framers had of rights.14 “the Blessings of Liberty to ourselves and been advanced by former Reagan Attorney our Posterity.” But a concern with securing General Edwin Meese and other political Justice Scalia argues that the correct way the Blessings of Liberty to the present and conservatives as a response to liberal judicial to interpret the Constitution is textualism. future generations is very different from clai- activism of the 1960s and 70s. Teir Tis approach, he claims, removes subjecti- ming the authority to establish the Consti- approach had also been subjected to a num- vity from the Court’s decisions. tution in the name of posterity. Had the ber of devastating critiques. Among the Framers claimed to have acted in the name prob lems critics point to is the difficulty of In some sophisticated circles, [textual- of posterity, there would be grounds for hol- determining whose intent ought to be counted, ism] is considered simpleminded- ding that the Constitution is an intergene- those who wrote the Constitution or those “wooden,” “unimaginative,” “pedestrian.” rational contract, binding on later who ratified the Constitution?9 Other critics It is none of that. To be a textualist in generations. But the Framers made no such point to the difficulty of determining what good standing, one need not be too dull claim, and surely they would have seen such the ratifiers’ intent was when the text is not to perceive the broader social purposes a claim as hubristic and illegitimate. clear, and when there is only unreliable that a statute is designed, or could be When a people adopt a constitution, evidence, at best, of their thinking about a designed, to serve; or too hide-bound to and specifically when they choose to protect particular passage.10 Antonin Scalia rejects realize that new times require new laws. certain rights and privileges in that consti- the search for original intent, in interpreting One need only hold the belief that tution, they place those matters beyond the both the Constitution and legislation, but judges have no authority to pursue those purview of the ordinary legislative process he retains Edwin Meese’s goal of making the broader purposes or write those new and the power of the majority to alter them Constitution a bulwark against an expanded laws.15 through the ordinary democratic process. If understanding of individual rights. a constitution is to be seen as legitimate, the For Scalia “the Great Divide with regard III. Constitutions and decision as to which rights to protect and to constitutional interpretation is not that Intergenerational Justice which rights to leave to the democratic pro- between the Framers’ intent and the objec- Te decision of a generation to establish cess should reflect accurately the fundamen- tive meaning of the text, but rather between specific institutions and to place some tal values of the founding generation. As original meaning (whether derived from question beyond the purview of the maj- generations pass, however, the assumption Framers’ intent or not) and current mean- ority of its current citizens is an act of of congruence between the values and the ing.”11 His strongest criticisms are reserved sovereignty and self-governance, insofar as circumstances of the founders and those of for those who espouse the view that the those decisions affect themselves and their their descendants becomes increasingly prob- Constitution ought to be understood as a contemporaries, and if they have a mean- lematic. Te further removed a generation, liv ing document whose meaning changes ingful say in adopting that instrument and if the greater the likelihood that there will be over time. Tis view “… frustrates the whole they consented to the terms of that significant differences between the moral

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concepts and values of the two generations.17 choices of future generations is, in and of argument. He raises a number of practical For this reason, justice to future generations itself, an act of injustice to future genera - objections, including that periodic revisions generally requires that the present genera- tions, unless there are extraordinary reasons of the Constitution would render govern- tion not seek to limit the choices and options for doing so. Future generations have the ment “too mutable to retain those prejudices of their descendants whenever possible. right to decide for themselves which institu- in its favor which antiquity inspires.”23 Mad- Justice to future generations certainly requires tions are worthy of preservation, and which ison also argues that debts incurred to make that the present generation not seek to should be changed or even abolished. Tis improvements in the natural state that be- enforce its preferences on future generations, right is not absolute; future generations are nefit future generations are valid obligations assuming that were possible. Although we obligated to consider the consequences of of future generations, and ought to be paid should not be indifferent to the types of abandoning established traditions and insti- by them.24 choices future generations may face, we have tutions, especially the consequences for their Nonetheless, Madison agrees with Jef- an obligation to respect the autonomy of posterity of abandoning the institutions they ferson’s assertion that the validity of natio- future persons, and not to seek to limit their have inherited. But the right of future genera - nal acts generally should be limited to the choices unnecessarily, nor to make choices tions to their own judgment of the worth of life of the generation that enacted them. for them that they are capable of making for the institutions they inherited, and their And Madison states that keeping this prin- themselves. right to act on that judgment, are inalien- ciple in view in the proceedings of govern- Antonin Scalia’s argument that “the able. Te commitments and actions of past ment would serve “as a salutary curb on the whole purpose [of a constitution] is to pre- generations cannot take away this right, and living generation from imposing unjust or vent change – to embed certain rights in every generation has the corresponding ob- un necessary burdens on their successors.”25 such a manner that future generations can- ligation to respect and preserve these rights Clearly, both Jefferson and Madison would not readily take them away”18 ought to give by not seeking to bind posterity to their an- reject Antonin Scalia’s claim that the “whole one pause. On the one hand, it is quite cestors’ conception of the good. Each purpose [of the Constitution] is to prevent clearly legitimate, even desirable, to establish genera tion is thus at liberty to alter or even change—to embed certain rights in such a institutions that are just and to leave them as abandon the commitments of its ancestors, manner that future generations cannot a heritage for future generations. To the ex- subject to the obligation to consider the con- readily take them away.”26 tent future generations find valuable and sequences of those actions.19 A generation ought to preserve those in- good the institutions they have inherited or Tomas Jefferson and James Madison herited institutions it finds to be beneficial established, a strong case can be made that both express very much this view in corre- and worthy of passing on to posterity. Tey they have an obligation to preserve those in- spondence they exchanged in 1789 and may even choose to perpetuate the institu - stitutions both for their own benefit and for 1790.20 In a letter dated September 6, 1789, tions they have inherited out of familiarity Jefferson poses the question whether a and habit. But future generations should see “In order for a constitution to be generation has the right to bind a later themselves as having greater leeway than intergenerationally just, the authority g e n e r a t i o n . J e fferson answers that no such their ancestors to change and adapt institu- of future generations to reinterpret authority can exist. He considers it self-evi- tions they have inherited to their needs. Te the document based on their dent “‘that the earth belongs in usufruct to the lack of contractual obligation is only part of understandings and values must be living;’ that the dead have neither powers the reason for this greater leeway. Future ge- acknowledged and preserved.” nor rights over it.”21 Jefferson goes on to nerations are also in a better position to argue that “no society can make a perpetual judge how constitutional arrangements have the benefit of future generations. On the constitution, or even a perpetual law. Te worked over time and how they continue to other hand, people who establish or preserve earth always belongs to the living genera- work. As Plato argued long ago, the user of institutions as a heritage for future genera- tion. Tey may manage it … and what pro- an instrument will speak of its merits and tions must also recognise that future gene- ceeds from it, as they please, during their defects with knowledge that the instrument rations may not share their judgment of the usufruct…. Te constitution and the laws of maker does not possess.27 worth of those institutions. their predecessors extinguished them, in Te most important reason future gene- Te dilemma of constitutionalism is that their natural course, with those whose will rations may choose to alter inherited insti- the mechanisms that protect the rights of gave them being.”22 tutions is that these institutions have ceased contemporaries against legislative majorities No clearer repudiation of Scalia’s claim to be useful in addressing the needs of a who want to take these rights away also that the purpose of the Constitution is to changing society. It is impossible for even make it difficult for future generations to bind future generations to the judgments of the wisest founders to foresee the nature and adapt the Constitution to their potentially the past could be asked for. Of course, Jef- direction of change in society. For that rea- very different circumstances. As we argue ferson was not at the Constitutional Con- son alone, institutions and practices must be later in this article, in order for a constitu- vention in Philadelphia, and for this reason able to be adapted to the inevitable changes tion to be intergenerationally just, the is not considered to be one of the Framers of in conditions and values. Te greatest flexi- authority of future generations to reinterpret the Constitution. But Madison was at the bility to adapt to change is found in the the document based on their understandings Convention and is generally considered to power to legislate in broad areas for the and values must be acknowledged and pre- be the principal architect of the Constitu- public welfare. On the other hand, the served. tion. While Madison espouses a more flex - power of Congress to legislate is limited in a For this reason, to establish institutions ible position in his response to Jefferson, he number of ways, including by prohibitions and procedures for the purpose of limiting the largely accepts the validity of Jefferson’s in the Constitution and the Bill of Rights,

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by the general requirement that the power Constitution to seek to bind the hands of actions for future generations of Americans. to legislate be fairly traceable to a grant of their descendants for their own good, and For Scalia, the terms of this compact can be power to Congress by the Constitution, and that the Framers actually sought to do so, applied correctly only by reconstructing the by interpretations of the Supreme Court. turns the Constitution into an intergenera- meaning of its language as it was understood Te constitutional amendment process tional contract or covenant whose purpose at the time it was written. has been used for great matters and some - is to bind all generations of Americans to We have argued that Antonin Scalia’s times for small ones. Te post-Civil War terms set down by the Framers, subject to approach to constitutional interpretation amendments (XIII, XIV and XV) laid the change only by constitutional amendment. places an undue and illegitimate burden on groundwork for greater equality and civil Tis understanding of the nature of the the present generation. As a practical mat- rights in the United States. But the Amend- Constitution underlies Scalia’s textual origi- ter, exclusive reliance on the Amendment ment process has also been used four times nalism. It requires justices to view their role process has proved unworkable. Te U.S. to tweak the way the United States selects as one of reconstructing the original mean - Constitution has changed as much by judi- its presidents (XII, XX, VVII, XXV). Alt- ing of the Constitution and applying that cial interpretation as by amendment. But hough constitutional amendments rest on a understanding to the constitutional review Scalia’s theory of constitutional interpreta- more solid foundation than laws or consti- of current laws and policies. tion is not merely impractical. It also rests tutional interpretations by the Supreme on an intergenerationally unjust model of Court, the amendment process is notorio- “One can accept that the constitution making. It would not have been usly cumbersome. More than eleven thou- Constitution of the United States is legitimate for the Framers of the Constitu- sand proposals to amend the United States an intergenerational compact, tion to have attempted to impose their Constitution have been introduced in its hi- without accepting the radical view values on future generations, by deliberately story, but only twenty-seven amendments of that compact espoused by Scalia.” restricting the choices of their descendants, were adopted.28 as Scalia argues they did. Te power to adapt the Constitution by One can accept that the Constitution of None of this undermines the validity of reinterpretation has proved to be as impor- the United States is an intergenerational intergenerational compacts such as consti- tant as the amendment process in preserving compact, without accepting the radical view tutions, or other policies likely to affect per- the United States’ political system. Te of that compact espoused by Scalia. A far sons well into the future. Constitutions are power of the federal government to levy more moderate position is that by estab- important – even essential – devices for sha- taxes on income was expanded by constitu- lishing a constitution that limits the powers ping political institutions and preserving tional amendment, but the equally critical of government, the Framers inevitably fundamental values. Moreover, we agree power to regulate the economy came about restricted the choices of future generations. with Madison that constitutions are by their by way of reinterpretation of the commerce Tis position is consistent with the under- nature inherently intergenerational. If they clause by the Supreme Court in 1937. Te standing of Edmund Burke that the (British) are successful, they will endure and shape application of the Bill of Rights to the states Constitution is an intergenerational covenant politics into the future, while at the same is rooted in the 14th Amendment, but it is embodying the accumulated wisdom of a time restricting the range of available choi- rooted just as much in the judicially created people.29 Burke’s position is also consistent ces open to our descendants. On the other doctrine of the selective incorporation of the with a more humble approach to constitu- fundamental provisions of the Bill or Rights. tional interpretation that requires judges to “There is no reason to think that Te United States Constitution has survived weigh the effects of past interpretations of either we, or the Framers of the more than two centuries both because it has the Constitution on society, and to modify Constitution, were endowed with the been amended and because the Supreme those interpretations that have proven harm- superhuman wisdom required to Court has reinterpreted key clauses of that ful. Tis view of the role of the Supreme justify interpreting the Constitution document in ways that facilitate adaptation Court has attracted the support of both as a covenant… whose terms are to changed values and circumstances. liberal justices and traditionally conservative fixed by their meaning at the time it It is precisely this ability to reinterpret justices such as John Marshall Harlan (the was adopted.” the Constitution in light of experience that younger). In Gideon v. Wainwright (372 Justice Scalia would deny. By limiting the U.S. 335 (1963)), for example, Justice Har- hand, when we adopt policies that affect fu- meaning of the Constitution’s language to lan was willing to abandon the rule the ture generations, the uncertainty we have re- its meaning at the time it was adopted, Scal- Court had handed down twenty-one years specting the effects of our actions and their ia decouples the meaning of the language in earlier in Betts v. Brady (316 U.S. 445 impact on future persons requires that we the Constitution from changes in meaning (1942)), largely because he was convinced avoid substituting our judgment for theirs in daily use. At the same time Scalia would that rule had proven unworkable. whenever possible, and that we err on the deny justices the ability to reinterpret the Antonin Scalia rejects an evolutionary side of increasing, rather than decreasing, provisions of the Constitution in light of and pragmatic approach to constitutional the range of choices open to future genera- experience. interpretation, in part because the U.S. tions. Constitution, unlike the British Constitu- Te question is not whether the present IV. Scalia’s Textualism and tion, is a written document. But he also re- generation may adopt policies that inciden- Intergenerational Justice – Conclusion jects an evolutionary view because he tally restrict the choices of future genera tions Antonin Scalia’s argument that it would understands the Constitution to have been by adopting institutions and practices they have been legitimate for the Framers of the established for the purpose of binding the see as beneficial to themselves. Rather the

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question is whether the present generation 6 If the Framers did not, and could not le- have required unanimous ratification by all may deliberately seek to restrict the choices gitimately, have bound future generations to thirteen states. When the Convention had of its descendants, a purpose Antonin Scalia their understanding of the Constitution, fin ished its work, not only did they propose espouses and attributes to the Framers of the then it is even more difficult to justify the adopting a completely new Constitution, United States Constitution. Tere is no efforts of some current members of the they also proposed a ratification process that reason to think that either we, or the Court to use interpretations of the Consti- abandoned the requirement of unanimity. Framers of the Constitution, were endowed tution to bind us to abandoned moral and 28 United States Senate Web Page: with the superhuman wisdom required to linguistic understandings. http://www.senate.gov/pagelayout/refe- justify interpreting the Constitution as a 7 Scalia, A 1997: 38. rence/three_column_table/measures_pro- covenant, binding on future generations, 8 Scalia, A 1997: 36. posed_to_amend_constitution.htm. Viewed whose terms are fixed by their meaning at 9 Logfren, C. A 1990: 117-150. February 2012. the time it was adopted. Tis certainly was 10 Hutton, J 1999: 151-178. 29 Burke, E 1955: 110. not the understanding of the Constitution 11 Scalia, A 1997: 38. reflected in the writings of Jefferson and 12 Scalia, A 1997: 12. References Madison, and it is not an approach that can 13 Scalia, A 1997: 42. Auerbach, B. E (1994): Unto the Tou- withstand analysis as an application of the 14 Scalia, A 1997: 43. sandth Generation: Conceptualizing Inter- principles of intergenerational justice. Tere 15 Scalia, A 1997: 23. generational Justice. New York: Peter Lang. is good reason to conclude that Antonin 16 Different normative considerations Scalia’s position is wrong both historically would apply to a decision supported by even Ball, T (1988): Transforming Political Dis- and ethically, and should be rejected. a large majority to repress a discrete and course. New York: Basil Blackwell. insular minority. Notes 17 Tis position is argued first by Martin Breyer, S (2005): Active Liberty: Interpre- * Te authors wish to acknowledge and ex- Golding 1980: 69 in his influential essay, ting Our Democratic Constitution. New press their thanks for the collaborative re- “Obligations to Future Generations.” Ter - York: Random House, Inc. search funding provided by Albright College ence Ball 1988: 150 makes a similar argu- in the form of a Creative Research grant ment in his Transforming Political Burke, E (1955): Reflections on the Revo- during the summer of 2010. Discourse. See also Bruce E. Auerbach lution in France. New York: Bobbs-Merrill. 1 Breyer, B 2005: 117. 1994. 2 Tribe, L 1997: 68-71. Tribe questions 18 Scalia, A 1997: 40. Cornford, F (tr.) (1945): Te Republic of whether one could actually discover a better 19 Locke, J 1980: 62, who influenced the Plato. London: Oxford University Press. or more correct understanding of the Con- thinking of the Framers makes very much stitution by simply meditating on it. He this point in his Second Treatise of Civil Golding, M (1980): Obligations to Future does not believe one can determine the level Government: “…[W]hatever engagements Generations. In: Partridge. E (ed.): Respon- of abstraction or the “empirical facts about or promises any one made for himself, he is sibilities to Future Generations. Buffalo, what a finite set of actors at particular mo- under the obligation of them, but cannot by NY: Prometheus Books, 61-72. ments in our past meant to be saying” (68) any compact whatsoever bind his children even with the use of complicated tools such or posterity. For his son, when a man, being Hutton, J (1999): Te Creation of the Con- as biography and psychology. Nor does he altogether as free as the father, any act of the stitution: Te Integrity of the Documentary believe that all constitutional clauses may be father can no more give away the liberty of Record. In: Rakove. J: Original Meanings: neatly defined as either specific or abstract the son than it can of anybody else.” Politics and Ideas in the Making of the Con- and that whether a clause is seen as specific 20 Te authors would like to thank Prof. stitution. Vintage, 151-178. or abstract may change over time. Te thrust Beau Breslin of Skidmore College for sug- of Tribe’s critique of Scalia is that with so gesting the importance of the correspon- Jefferson, T (1789): “To James Madison” much wiggle room for interpretation in dis- dence between Jefferson and Madison in Paris, September 6, 1789. Letters Electronic covering the meaning and mode of the law, comments on a draft of this paper presented Text Center, University of Virginia Library. it is difficult say whether Scalia is espousing at the Northeast Political Science Associa- law or his own judicial aspirations disguised tion (U.S.) annual meeting in November of Locke, J (1980): Second Treatise of Go- in fanciful explanations of history. 2010. vernment. In: Macpherson. C (ed.): Second 3 Scalia, A 2003. In a speech delivered in 21 Jefferson, T 1989: 960. Treatise of Government. Indianapolis, IN: Washington, D.C. on October 18, 1996 at 22 Jefferson, T 1989: 964. Hackett Publishing. Te Catholic University of America, Anto- 23 Madison, J 1790. n in Scalia describes himself as belonging to 24 Madison, J 1790. Lofgren, C. A (1990): Te Original Under- a small but hardy school, called “textualists” 25 Madison, J 1790. standing of Original Intent. In: Rakove. J. or “originalists.” We have taken the liberty 26 Scalia, A 1997: 40. N (ed.): Interpreting the Constitution: Te of combining the two terms in describing 27 Republic of Plato (Book X, section 601). Debate over Original Intent. Boston: Nort- Scalia’s approach to interpreting the Con- It is noteworthy that the Philadelphia Con- heastern University Press, 117-150. stitution. vention was called for the purpose of pro- 4 Scalia, A 1997: 23. posing amendments to the Articles of Madison, J (1790): Letter to Tomas Jeffer- 5 Scalia, A 1997: 45-46. Confederation. Such amendments would son. Te Founders’ Constitution, Volume 1,

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Chapter 2, Document 24. http://press- Tribe, L (1997): Comment. In: Gutmann. Michelle Reinhart is a pubs.uchicago.edu/founders/documents/v1 A (ed.): Antonin Scalia: A Matter of Inter- recent graduate of ch2s24.html. Viewed February 2012. pretation: Federal Courts and the Law. Albright College. She Princeton: Princeton University Press, 65-94. works as a Property Scalia, A (2003): Judicial Adherence to the Maintenance Specialist Text of Our Basic Law: A Teory of Con- Bruce Auerbach is a for Te City of stitutional Interpretation. Te Progressive Political Teorist in the Reading, PA. Conservative U.S.A. Volume V, Issue 225, Department of Politi- September 5, 2003. http://www.proconser- cal Science at Albright Contact Details: vative.net/ College. He writes in 815 Washington Street, Reading, PA the areas of U.S. Con- 19601, United States Scalia, A (1997): Common-Law Courts in stitutional Law and In- Email: [email protected] a Civil Law System: Te Role of United tergenerational Justice. States Federal Courts in Interpreting the Contact Details: Constitution and Laws. In: Gutmann. A Department of Political Science, Albright (ed.): Antonin Scalia: A Matter of College, P.O. Box 15234, Reading, PA Interpretation: Federal Courts and the Law. 19612, United States Princeton: Princeton University Press, 3-47. E-mail: [email protected]

Short-sightedness in Youth Welfare Provision: the Case of RSA in France by Juliana Bidadanure

bstract: Tis paper1 reconstitutes called RSA “Revenu de solidarité active”. they have worked full-time for two years in and addresses critically the deonto- Just like the former RMI, this new plan in- the past three. Initially, 160,000 young logical and consequentialist argu- cluded a monthly allowance (of about €460) people5 were supposed to receive this new al- mentsA given by the French government to for those without any source of income. location, which represented only 2% of justify the denial of the national guaranteed How ever, as opposed to the former RMI, it young people, while approximately 20% of minimum income support (RSA) to young also made provisions for a second allowance them lived under the poverty line, and while people under 25 years old. Te deontological to top up the income of the low-paid. As a more than 23% of active young people were arguments express a concern for distributive result, the government claimed that it would unemployed.6 Today, over a year after its justice and suggest that young people do not incentivise work rather than inactivity.2 o fficial launch, the situation is even worse: deserve income support. Te consequentialist In the initial proposal, young adults bet- only about 10,000 young people receive arguments, on the other hand, emphasise social ween 18 and 25 years old were ineligible for RSA-jeunes, while over one million people efficiency: they draw on the alleged negative RSA,3 just as they were excluded from the aged between 18 and 25 live under the pov- outcomes that the extension of income support former RMI. According to the Haute Auto- erty line.7 French youth unemployment is, to young people would bring about. After ana- rité de Lutte contre les Discriminations et pour on average, more than twice as high as the lysing each argument, this paper concludes that l’Egalité – the French Equal Opportunities national (9.3%) and the OECD (8.5%)8 the denial of RSA to young people is an illegi- and Anti-Discrimination Commission – unemployment rate. timate discrimination. It then proposes that we such differential treatment was discrimina- In this paper, I aim at presenting the understand our duties towards young people tory. Te inequality of treatment was based justifications that were given for the denial through an account of prudence that reconciles on age – a criterion prohibited by the law – of the original RSA to young people and for both (1) concerns of distributive justice with and it deprived young people of an impor- the implementation of the very restrictive concerns for social efficiency and (2) concerns tant social right.4 RSA-jeunes instead. Tere was a critical lack for inter- and intragenerational justices. As a response, President Nicolas Sarkozy of governmental publications justifying the introduced a new scheme in September practice,9,10 which is unacceptable given Introduction 2009 entitled “RSA-jeunes” (RSA-youth) what is at stake. Drawing mainly on the in- In June 2009, the Sarkozy government re- aimed at young people between 18 and 25 troductory speech for RSA-jeunes by Presi- formed the “Revenu Minimum d’insertion” years old. However, as its name suggests, dent Sarkozy and from scholars who (RMI), which was the French guaranteed RSA-jeunes is different from the original questioned age requirements for minimum minimum income support (effective since RSA. It requires a past contribution: young income, I have tried to reconstitute a taxo- 1988), and implemented a new scheme people are only entitled to income support if nomy of the underpinning premises

22 Intergenerational Justice Review Issue 1/2012