Constitutional Interpretation and Originalism

Court of Appeal Justice Cole Blease takes issue with Scalia’s take on language

By Lori Craig

Taking umbrage with the “Scalia brand of originalism,” California Court of Appeal Justice Cole Blease spoke about the role of language in constitutional interpretation recently at USC Gould School of Law.

California Court of Appeal Justice Cole Blease

Blease, associate justice of the Court of Appeal, third district, presented the lunchtime discussion as an installment in the Neiman Sieroty Lecture Series, named for 1956 USC Gould classmates Allen Neiman and Alan Sieroty.

Frequently invoking the form of originalism endorsed by Supreme Court Justice Antonin Scalia, Blease discussed the limits it imposes on terms in the Constitution that aren’t defined within the document —phrases such as “unreasonable searches and seizures,” “due process of law,” “equal protection” and numerous other provisions.

“For originalists like Justice Scalia, bringing meaning to these terms requires an historical analysis of their use at the time of enactment,” Blease said. “This has the consequence of limiting the terms, limiting their applications, and therefore their meaning, to the applications current or expected at the time.”

However, Scalia has admitted that such analysis can be difficult and particularly challenging in the face of an unjust result, Blease said. Plus, Scalia accepts stare decisis on some points of constitutional law, including incorporation doctrine.

“And you begin to wonder, what’s left of originalism after it’s passed along those sieves?” Blease said.

The real question posed by originalism, according to Blease, is whether the “great clauses” of the Constitution are designed to leave the expression and limitation of those constitutional principles to the future, or are designed to limit future generations.

An appeals judge since 1979, Blease previously had a 25-year career in civil liberties, working for a number of public interest agencies, including as chief lobbyist for the American Civil Liberties Union. He also taught at the University of California at Berkeley, where he earned his undergraduate and law degrees.

Despite his many years in law and on the bench, Blease described himself as a “rule skeptic.”

“What I mean is, for a rule to have meaning, it must have determinate applications, and that requires an agreement not only in the language of the rule itself, but also in the correctness of the application,” Blease said.

Some rules for which the applications are known, such as statutes of limitation and procedural rules, are precise because “we’ve been told how they got to be precise, so we don’t ask the question ‘What could they mean?’ And it’s rare for it to occur that there’s some novel issue that arises from them.

“But when you get to these broad clauses of the constitution, the opposite is true. So it’s the agreement then on the application of the standard that produces the determinant meaning. The standard together with the collective set of an agreed-upon application is what we call the law. It’s case law.”

The law is not actually in the language of the Constitution in the sense that lawyers enter information and receive an answer, Blease said. The Constitution contains both determinate language — the organization and structure of the Constitution — and indeterminate language. He held up criminal law as an example: there are only three places in the Constitution that mention a criminal matter, one being treason, yet the country’s broad criminal code is drawn from the more general language of the Constitution, frequently from the commerce clause.

The founding fathers well understood the nature of these broad phrases, Blease said. Rather than call words like “reasonable” search and seizure “as a rule of some kind, [they are] a delegation of power to somebody to put in the applications as they arise.”

A more fundamental issue with Scalia’s take on originalism, Blease said, is that it implies keeping the applications of broad constitutional terms fixed at the time of enactment, limiting the applications and the meaning of the Constitution of a particular time and culture.

“The founding generation, or some of them, saw far beyond the compromises required to enact the Constitution and wrote much of this language in terms hoping for future determination,” Blease said, pointing out that only adult white male property owners could vote and run for office at the time of the country’s founding.

Blease also discussed some of his professional experiences and how he approaches problems from the bench, noting he has had the unique experience of having enacted statutes, litigated statutes and ruled on statues. He also highlighted a time when his own attempt to use simple, discriminate language was thwarted by a later interpretation.

Allen Nieman '56, Justice Cole Blease, Alan Sieroty '56, and Dean  Robert K. Rasmussen.

Early in his career, Blease drafted a statute to help the County of Los Angeles clear loiterers out of its libraries at night by giving janitors some police powers. Foreseeing that such a law might be used against demonstrators, Blease said he went to great lengths to solve the library’s problem and take care of other potential problems in the process.

Years later, while teaching at Berkeley during the height of the free speech movement, Blease was “embarrassed” to learn that his statute was used to arrest hundreds of demonstrators protesting on university grounds. The reason: the statute used the word “custodian” rather than “janitor,” allowing the university and police to force the protestors out.

“I would suggest that this is a challenge we will all face, because you are a captive of your own linguistic backgrounds … which have infiltrated your being,” Blease said.

The Neiman Sieroty Lecture Series, endowed by Alan Sieroty ’56 and named for Sieroty and his classmate Allen Neiman ’56, focuses on civil liberties issues.