Tag: Antonin Scalia

What’s Good for Interpreting the Constitution . . .

Published on by D. G. Hart140 Comments

is good for interpreting the Bible:

Justice Scalia’s determination to take the law as it is earned him many enemies among our progressive elites. The criticism was and remains that Scalia’s textualism prevents the Constitution (and law more generally) from “growing” to meet the changing needs of the people and their government. Scalia was uncaring and a servant of injustice, we have been told, because he was not willing to use the law to do things its often privileged and corrupt authors did not intend it to do. The reprehensible hit piece sent out to faculty and students at Georgetown Law School by Professors Gary Peller and Louis Michael Seidman well illustrates the level of hatred aimed at Justice Scalia on account of his principled approach to law. It was wrong, according to these two professors, both of whom deny the legitimacy of our Constitution, for their law school to mark Justice Scalia’s passing with sympathy and respect because he was, on account of his judicial decisions, a bad man. The virtue progressive lawyers like Mr. Peller and Mr. Seidman demand of judges is quite clear. A good, virtuous judge is one who cares about the oppressed (defined by race, class, and gender), knows that law often is a tool of oppression, and sets himself the task of rewriting the law to make it a tool of justice by serving the interests of oppressed groups, as determined by progressive elites. In rejecting this hubristic model of the judge as savior, Justice Scalia earned endless calumnies, most especially the constant jibe that he was merely a tool of powerful bad actors.

The irony in these charges is thick, for it was precisely Justice Scalia’s refusal to go beyond the text of the Constitution or law that made his jurisprudence by far the most democratic and egalitarian, in the historical American sense, on the Supreme Court of his and perhaps any other time. The Supreme Court Justice who divines “emanations” from “penumbras” of various phrases and ideas in the Constitution and stitches them together into doctrines like the “right to privacy” is serving neither the law nor the people, but his own ideology.

Development of doctrine may allow interpreters of papal instruction to find coherence. But the similarities between development of dogma and a “living, breathing” Constitution are striking.

Grammatico-Historical Interpretation of the Constitution

Published on by D. G. Hart94 Comments

Lots of posts out there about Antonin Scalia as the faithful Roman Catholic. But the man sure sounded like he learned how to read the Constitution from Protestants:

Nonetheless, there is no escaping a verdict on his influence on American jurisprudence, and that verdict is not affected by the fact that he was a good buddy to prominent liberals. He was an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other. Originalism was Scalia’s core ideological commitment, the idea that the Constitution should be interpreted as it was understood at the time of its ratification. He employed Originalism to question the idea that the Constitution is a “living document,” as liberal jurists held.

To be sure, there was a need for a conservative corrective after the high court starting snooping around the “penumbras” of the Constitution. As Justice Elena Kagan said in mourning Scalia’s death, “His views on interpreting texts have changed the way all of us think and talk about the law.” But, whether the Constitution is alive or not, the people whose government it intends to frame are most certainly alive and their circumstances change. Laws that cannot change with the lived circumstances of a people soon become disconnected from reality, and that disconnect will lead to the law being held in derision or ignored. . . .

Scalia’s other ideological commitment was to Textualism, the idea that the actual words must be interpreted in a kind of fundamentalist manner. This could conflict with Originalism. For example, an originalist would, like an historian, search for explanations as to what was intended by the drafters of a given text, to confirm that original intent and guarantee against latter day misinterpretations. But, Scalia famously loathed citations to legislative history. Textualism rests on the supposition that the Constitution is a self-interpreting text and if that were true, why would we need a Supreme Court? In practice, Textualism resulted in the conclusion that any given text meant exactly what Antonin Scalia thought it meant.

Of course, it’s not clear that Scalia’s hermeneutic was all positive. But it hardly sounds like it’s a product of deferring to the magisterium or to the development of dogma.