Scalia explains that if Judges are going to make the law instead of interpreting the law, then they have to be vetted for what kind of policies they are going to pass in their opinions. Scalia of course disagrees vigorously with judges who substitute their own will for the law. Nevertheless, as long as they do so, the people have a right to know what kind of laws they are going to pass in their rulings.
Sadly, this dinosaur type thinking is just that – gone!
If you believe the latter, you’re left with no mooring whatsoever. Just drifting off into every wind that blows. Thank you for posting this.
““The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Look up something called the Voting Rights Act and then look up Scalia’s vote on that case from the last few years. He decided, via judicial activism, to overturn the will of Congress in creating that law.
If originalism was the only approach that mattered then we would still have slavery. If the founders had intended for slaves to be free then they would have written that into the constitution, no? Just want to illustrate that the constitution, while a venerable document, contained things that made sense for the society of that time but was inappropriate for a changing society.
But wait, couldn’t Dworkin’s semantic originalism lead to same-sex marriage? Therefore, interpreting the constitution to guarantee that right is consistent with having rule of law…
There are two problems with Scalia’s views. The first problem has to do with his consistency. In D.C. vs Heller in 2008, his decision went past the words that exist in both The Constitution and the 2nd Amendment. In addition, his opinion that gov’t can favor a particular religion is not found in the text of The Constitution. And yet, he so easily calls those whose opinions that don’t match his in interpreting The Constitution revisionism. And thus Conservatives who folow him spark the kind division between Americans that exists in the Muslim world where we have Sunni and Shia battling over who are the true successors of the prophet Mohammad. Only with, we are battling over which group is following after the founding fathers. Here we should note that the founding fathers were not a monolithic group and weren’t deserving the pedestal on which some of us have placed them.
The second problem has to do with seeing flexibility in interpreting The Constitution as being equated with rewriting the document. After all, the founding fathers wrote things that had implications they may never have seen. And, in fact, what they wrote may have had implications that went against what they practiced. And yet, we are told that approaches like Scalia’s, which ironically includes relying on extra textual information to interpret the text of The Constitution, is the only way to follow The Constitution as it was ratified. Such makes The Constitution an obsolete document not long after it was passed.
The confusion with this last point here is finding the difference between textual consistency as it applies to new problems that could have never been forseen by our founding fathers and Constitutional revisionism where people project their own values into the text. Scalia’s approach of trying to follow the intention of the Founding Fathers’ intent for a particular amendment demands that he break with his textualism by interjecting other texts that tell us what the founding fathers were thinking. And where the amendment was a compromise, only one group’s opinions of the founding fathers is the extra textual evidence that is inserted into interpreting The Constitution.
“Do texts mean what their authors intended them to mean, or do they mean something else?”
It’s more complicated than this. You’re blending text and intent together in a way that shows that you don’t understand the terms of the debate.
Scalia began as an advocate of the original *intent* method, in which you consult historical sources to determine how a provision’s framers *intended it to be applied later*. Many liberal and conservative scholars consider this method discredited because when hundreds of different people are involved in framing a constitutional provision, there is no single intent behind it that can govern future interpretations.
So Scalia modified his position slightly and became an advocate of the original *meaning* method, in which you consult linguistic sources to determine what the words of the text *meant* to people in public life at the time they were adopted. In this method, you focus directly on the meaning of the words on the page and you do *not* look behind them to figure what was in the framers’ minds. This is the method Scalia attempted to use in the DC v Heller 2nd Amendment case, where he tried to figure out what the word “arm” meant to the founding generation. Both liberal and conservative experts think this original meaning method has more merit than original intent.
The problem is – and this is what Justice Scalia could never bring himself to admit – that once you agree that future interpretations should be governed by the original *meaning* and not original *intent*, you broaden the scope of what future interpretations are legitimate. Original meaning does not necessarily make judges as restrained or conservative as Scalia liked to insist. For example, there are progressive legal scholars who advocate for a variety of new progressive legal doctrines using the original meaning method. (See Jack Balkin or Akhil Amar). There are also conservative scholars who are at odds with conservative policy preferences because of original meaning. For example, Steven Calabresi, the founder of the Federalist Society and an originalist, wrote an amicus brief to the Supreme Court arguing that the original meaning of the 14th Amendment requires all states to allow gay marriage.
Scalia was a legal giant, but the way he popularized his own purported method of interpretation did more to confuse the public debate than clarify it. It’s way more complicated than “conservatives always follow the text, liberals are judicial activists.”