Undoubtedly, the terms of Scalia’s contrast between textualism and

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Last updated: August 16, 2019

Undoubtedly,Scalia has impacted the American society in many ways with his forcefulopinions and the role he has and continues to play on such issues as schoolprayer, abortion, gay rights, executive privileges, qualified immunity andcapital punishment. Sometimes referred to and an ideologue, Scalia willnonetheless continue to make impressions in the judicial system of America.Scalia’s main concern, in his short but spirited essay, is withissues about how judges should interpret statutory and constitutional law in aconstitutional democracy. His central contention is that the rule of law withina constitutional democracy requires that interpretation be constrained by theoriginal meaning of legal texts, as applied to present circumstances, ratherthan by extra textual sources, such as the intentions of the framers or past orpresent moral and political deals.

Only a textualist approach to interpretationwill ensure the rule of law, rather than a rule by individuals. Scaliacontrasts the quasi-legislative aspects of common-law adjudication withstatutory and constitutional adjudication and inveighs against what he sees as themodern infestation of common-law methods in statutory and constitutional interpretations.Scalia’s commentators fall into two main camps: those who accept the terms ofScalia’s contrast between textualism and its rivals (Wood and Glendon) andthose who favor a more principled conception of textualism (Tribe and Dworkin).Wood shares some of Scalia’s concerns about the tension between common lawmethods and constitutional democracy but challenges Scalia’s view that thegrowth of judge-made law is a recent phenomenon, arguing that there has been a blurringof legislative and judicial functions since the inception of their public.Glendon shares many of Scalia’s concerns about the principled basis of muchcontemporary statutory and constitutional adjudication, some of which she alsoattributes to the infestation of common-law methods. But she thinks that many ofthe ills of statutory and common-law adjudication would be remedied if therewere greater attention paid to the common-law concern with precedent. Tribethinks that Scalia’s jurisprudence depends upon an untenable contrast betweenjudicial legislation that looks outside the text and judicial interpretation ofrules and principles to be found in the text of the constitution.

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In a similar,but more satisfactory, response, Dworkin argues for a more philosophicalconception of textualism than Scalia is willing to recognize; keyconstitutional provisions enact abstract moral and political principles that itis the interpreter’s job to articulate and apply in a defensible way. To mymind, Dworkin’s commentary is the best of the bunch and identi?es some serious concernsabout Scalia’s jurisprudence. The common law, Scalia thinks, represents theimposition of judge-made law. Initially, a judge decides a case by invoking arule or principle that she ?nds politically attractive or rooted in traditionsof her community. The principle exerts pressure for future decisions to be consistentwith earlier ones. But consistency, as Scalia understands it, is a rather weakdemand, and the common law grows by judges adding new rules and principles orqualifying existing ones. Here too, they invoke rules or principles that they?nd congenial either to their own sense of political morality or to that of thecommunity but that come from sources that are external to existing rules andprinciples. Scalia has no serious quarrel with the need for and appropriatenessof common-law adjudication in those parts of the private law not governed bylegislation.

One might wonder why Scalia doesn’t conclude that courts shouldsimply remain silent where democratic legislatures have not spoken. But he doesthink that the common-law approach to interpretation is inappropriate in areasgoverned by enacted law—statutory or constitutional. In these areas, Scaliaargues, the rule of law and the institutional role of the judiciary as interpretersof the law require that judges and other interpreters be guided by the languageof the enacted provisions. Appeals to the intentions of the legislators orthose of constitutional framers, the moral and political values of theinterpreter, or the values of the community at the time of enactment or now,Scalia thinks, are all irrelevant, for that would be to decide cases by appeal tostandards that were not democratically enacted; only the words of the provisionwere democratically enacted. Some conceptions of interpretation represent manyinterpretive claims as objects of reasonable disagreement that are inherentlycontroversial. Conceptions of interpretation that require interpreters to makesubstantive normative judgments, to engage in historical reconstruction of the intentionsof the framers or the moral and political traditions at the time of enactment,or to identify current moral and political ideals will be controversial in thisway.

Whereas some think that only such conceptions can do justice to thecontested character of interpretive practice, Scalia, like others, thinks that anysuch conception of interpretation is inconsistent with the rule of law: ”I donot suggest, mind you, that originalists always agree upon their answer. Thereis plenty of room for disagreement as to what original meaning was, and evenmore as to how that original meaning applies to the situation before the court.But the originalist at least knows what he is looking for: the original meaningof the text. Often—indeed, I dare say usually—that is easy to discern andsimple to apply” (p. 45). His own textualism does not eliminate interpretivecontroversy altogether, but he thinks it does limit disagreement and make ittractable.

One question is whether, as Scalia believes, a consistent textualistcan avoid or minimize interpretive controversy and disagreement. The meaning ofsome statutory and constitutional provisions is dif?cult to dispute. The meaningof the constitutional requirement that the President be at least 35 years oldand have been a resident of the United States for at least 14 years (ArticleII, §5) seems pretty clear. But many statutory and constitutional provisions,especially provisions in the Bill of Rights and the Fourteenth Amendment, usegeneral or abstract normative language—such as ‘freedom of speech’,’unreasonable search and seizure’, ‘due process’, ‘just compensation’, ‘cruel andunusual punishment’, and ‘equal protection of the laws’.

The meaning of suchlanguage seems inherently controversial, inasmuch as people can and do formdifferent conceptions of these abstract concepts. No doubt the framers hadspeci?c understandings or conceptions of how these abstract concepts were to beinterpreted, which led them to expect that these provisions would regulate someactivities and not others. But because they chose the abstract language, ratherthan language that speci?cally targeted all and only the activities theyexpected the broader language to cover, ?delity to democratically enacted lawrequires ?delity to the best conception of the abstract concept, rather than tothe framers’ speci?c conceptions. For instance, the framers of the EighthAmendment may have been especially concerned with certain speci?c forms ofpunishment or torture—perhaps the guillotine, the rack, and drawing andquartering. But they chose language prohibiting all cruel and unusualpunishments, not just those that they then believed to be cruel and unusual.That means that ?delity to the language of the constitutional provisionrequires articulating and defending a substantive conception of the abstractconcept of unfair or morally disproportionate punishment, rather thanreproducing the framers’ speci?c conception of cruel and unusual punishment. Butthen it’s hard to see how interpreters could try to ascertain the meaning ofprovisions employing normative language without making explicit or implicit normativecommitments. Often, these normative judgments will be controversial, which iswhat makes statutory and constitutional interpretation especially interesting.

Good interpretation will defend, and not simply invoke, these normative judgments.Another question is whether a consistent textualism can deliver acceptableinterpretive results. Consider Scalia’s own illustration of textualism. His brandof textualism insists that ”a text . . .

should be construed reasonably, tocontain all that it fairly means” (p. 23). He illustrates this brand oftextualism by his dissent in Smith v. United States (508 U.S. 223 1993).

”The statute at issue provided for an increased jail term if, ‘during and in relationto.. a drug traf?cking crime’, the defendant ‘uses . . . a ?rearm’. Thedefendant in this case had sought to purchase a quantity of cocaine; and whathe had offered to give in exchange for the cocaine was an unloaded ?rearm,which he showed to the drug-seller. The Court held, I regret to say, that thedefendant was subject to the increased penalty, because he had ‘used a ?rearmduring and in relation to a drug traf?cking crime’.

. I dissented” (pp. 23–24).Scalia dissented on the ground that the proper interpretation of the statutewould understand the reference to the use of ?rearms to be restricted to theiruse as weapons, and not to include their use as barter. But this sensible interpretiveclaim cannot be defended by appeal to the meaning of the language of theenacted provision, independently of information about the general aims or goalsthe legislators were pursuing in enacting the provision. But this is just thesort of extra textual information that Scalia’s textualism eschews. To avoidthe interpretive absurdities of literalism, interpretation must appeal not justto the meaning of the language of legal provisions but to reasonableconceptions of the principles and aims that rationalize those provisions.

Scalia’s attempt to articulate and defend his interpretive methods is a welcomedevelopment, even if his jurisprudence remains problematic. Though the Court’sreasoning in particular cases is quite public, we often see too little of thelarger jurisprudential commitments on which speci?c interpretive claims depend.One might hope that a more systematic public discussion of these matters wouldhelp form more consistent and sound jurisprudential views on the Court.Furthermore, hisadherence to the text before him makes Scalia reluctant to find constitutionalrights that are not clearly expressed in the Constitution or firmly grounded inthe American tradition. In two notable cases, Webster v Reproductive Health Services(1989) and Cruzan v Director, Missouri Department of Health (1990), Scaliaopenly rejected any constitutional basis for a right to an abortion or a rightto refuse life- sustaining treatment.What is more, Scalia’s “textualist” approach has not only causedcontroversy in the American society, but interestingly enough, he has promptedhis fellow colleagues to be more self conscious about their own interpretationsof the law and has even produced alliances with the more liberal members of theCourt in defense of rights that he considers to be unequivocally expressed inthe Constitution or rooted in ancient tradition. As sited by an articleentitled, ” High Court’s Colorful Man in Black” by Robert Marquand,the Brady handgun case exemplifies Scalia’s “textualist” approach ofinterpretation.

In this specific case the issue was whether local or statepolice could be required to enforce a federal policy about checking thebackground of people buying firearms. A 4 to 5 majority decided that they didnot have to. However, Scalia who wrote for the Court, argued that the plaintext of the Constitution sets out an equal separation of powers between statesand the federal government. As a result, his opinion bypassed the history ofthe federal-state relations as ruled on by the Court over time.

Put in moreplain and expressive terms, the article noted that Scalia “rejected any’balancing analysis’ that would give more weight to federal than stategovernment.” (pg 2) However Scalia says it best when he in his opinion onthe case wrote, “it is no more compatible with States’ independence andautonomy that their police officers be dragooned into administering federal lawthan it would be compatible with the independence and autonomy of the UnitedStates that its officers be impressed into service for the execution of Statelaws.” Nonetheless, Scalia has dissented from the majority on numerous cases, tooextensive to expound on here. Among such cases to site just two, are theMaryland v Craig (1990), a decision that permitted children testifying in abusecases to do so by closed-circuit television on the ground that it wasinconsistent with the Sixth amendment, which protects the right of the accusedto confront his or her accuser and when the Court upheld the validity of amandatory drug-testing program for customs employees, explaining that in hisview it violated the Fourth Amendment’s prohibition against unreasonablesearches and seizures.

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