Textualism, as its name suggests, looks for the meaning of a law in the text of the law itself. Waters perhaps the most intriguing aspect of the supreme courts 20032004 term was the relative absence of debate among the justices on what has. Scalia and constitutional property rights the washington. A dialogue on statutory and constitutional interpretation the honorable antonin scalia john f. Feb 15, 2016 still, justice scalias most important legacy will be his originalism and textualism theory that judges should decide cases according to the public meaning of the words in the. Supreme court justice antonin scalia, a judge like this can maneuver through earlier cases to achieve the desired aimdistinguishing one prior case on his left, straightarming another one on his right, highstepping away from another precedent. That, very roughly, is scalia s doctrine of the judicial interpretation of legal texts. Constitutional interpretationjustice scalia august 27, 2018 november 18, 2019, law and government, constitution, corruption, courts, judges, 0 u. Manning in recent years, the supreme court has placed increasing emphasis on the meaning of the enacted text not only in statutory cases,1 but also in constitutional cases. Constitutional interpretation the old fashioned way justice antonin scalia delivered the following remarks at the woodrow wilson international center for scholars in washington, d. On the one hand, justice scalia consistently denounced the use of foreign legal sources in constitutional interpretation, both in his concurring opinion in sosa v. Justice scalia did much to strengthen judicial protection for constitutional property rights. Breyer and a group of students in a conversation on the constitution.
Justice scalia speaks on constitutional interpretation. Constitutional interpretation the old fashioned way. Justice scalias interpretation of the second amendment probably is erroneous, but one who doubts this should conclude that the relevant meaning of. Scalia said the most profound and significant departure from our nations constitutional structure and the principle of federalism protecting the states. Justices scalia and breyer talk about interpreting the. Both on and off the bench, justice scalia was a convivial, exuberant performer. On one side, we have the neglected science of interpreting legal texts presumably vital to a country with a constitution that vests all legislative power in the. Originalism is based on the premise that the operative words of the constitution all have or might have timedated original public meanings that are different from their current meanings.
As a conservative, it was striking to hear people who had spent their careers opposing president reagans policies speak so fondly about him. Jul 15, 2019 antonin scalia originalism the lesser evil pdf originalism. Justice scalia and the idea of judicial restraint university of. Supreme court justice antonin scalia, who died february, was an originalist in his approach to the constitution. Constitutional textualismor just plain textualismand. But he conspicuously failed to link property rights with the constitutional originalism he advocated. A dialogue on statutory and constitutional interpretation. Justice scalias protectiveness of the first amendment flowed more from his views on stare decisis and his respect for precedent, rather than his originalist approach to constitutional.
The traditional avoidance canon required the court to choose a different interpretation only when one. He believes judges should determine the framers original intent in the words of the constitution, and hew strictly to it. Justice scalia explains why the living constitution is a. May 14, 2018 two years ago we lost justice antonin scalia, one of the greatest defenders of the idea that rulings should be based on what the constitution meant as originally written, a legal theory known as originalism. Part v suggests that the kind of original meaning supported by the specifying use theory plausibly merits deference. The article sheds light on the shortcomings of justice scalias approach in his vicious attack on the court for recognizing samesex marriage as a constitutional right protected by both the due process clause and the equal protection clause of the fourteenth amendment. He was also, along with justice clarence thomas, the leading judicial practitioner of originalism of his era.
The constitution must control judges, not vice versa. Courts prior decisions on questions of constitutional law. The inimitable justice antonin scalia, who served nearly thirty years on. Still, justice scalias most important legacy will be his originalism and textualism theory that judges should decide cases according to the public meaning of the words in the. Edited by brian slocum university of chicago press. The late justice scalia emphatically rejected the notion that there is a general right to privacy in the constitution, despite the many cases that have held otherwise over the past several decades. The first term on the supreme court, 1986 1987, 20. Two years ago we lost justice antonin scalia, one of the greatest defenders of the idea that rulings should be based on what the constitution meant as originally written, a legal theory known as originalism. March 11, 1936 february, 2016 n 1 was an american lawyer, jurist, government official, and academic who served as an associate justice of the supreme court of the united states from 1986 until his death in 2016. Justice antonin scalia spoke about issues involved in interpreting the constitution, judicial philosophies, and the decisionmaking process at the supreme court.
Justice scalia, originalism and textualism digital commons. It discusses justice scalias writings and remarks over the course of the 20032004 supreme court term. University of southern california to appear in justice scalia. He was described as the intellectual anchor for the originalist and textualist position in the courts. Justice antonin scalia s speech on constitutional interpretation covers the jurisprudential positions of constitutional interpretation. First, he believed that textualism is enshrined in the constitution itself, and hence that judicial departures from it are. Justice scalia is a staunch conservative, what he calls an originalist. The basic argument in justice scalias defense of originalism justice scalia introduces his discussion of originalist constitutional. Supreme court justice antonin scalia on friday delivered an impassioned defense of his approach to constitutional interpretation, capping a twoday princeton conference on james madison, the fourth u. Manning, a dialogue on statutory and constitutional. We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. Aug 24, 2012 justice scalias interpretation of the second amendment probably is erroneous, but one who doubts this should conclude that the relevant meaning of the amendment had been lost in the passage. Justice antonin scalia discussed his book, reading law.
Originalism has been replaced with the living constitution when originalism was the accepted theory of interpretation, activist judges had to resort to lying about the meaning of the constitution to get the outcome they wanted, says scalia. Constitutional interpretation justice scalia august 27, 2018 november 18, 2019, law and government, constitution, corruption, courts, judges, 0 u. Federal courts and the law the university center for human values series. Justice scalias skepticism was rooted in two theories. Court justice antonin scalia, and rejected by critics of originalism like. Also mentioned is scalia s historical look at how the living constitution approach seems to have taken.
So scalia thought that statutes and the constitution ought both to be interpreted in the same way, using a method he called textualism 29 but which in the context of constitutional interpretation is more commonly dubbed originalism or new originalism or original public meaning or opm. Oct 09, 2011 justice scalia is a staunch conservative, what he calls an originalist. Supreme court justice antonin scalia describes why the only rational way of interpreting the constitution is originalism or textualism, and why every other approach undermines and destroys. On the other hand, justice antonin scalia in his book a matter of lnter. Antonin scalia originalism the lesser evil pdf originalism. Constitutional interpretation the old fashioned way justice antonin. See generally aleinikoff, constitutional law in the. Rejecting both justice scalia s majoritarian model, which focuses on legislative sources of tradition, and justice souters commonlaw model, which focuses on supreme court precedent as a source of tradition, the. Rejecting both justice scalias majoritarian model, which focuses on legislative sources of tradition, and justice souters commonlaw model, which focuses on supreme court precedent as a source of tradition, the.
Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Most of all, i prized the rare talent justice scalia possessed for making even the most sober judge. Breyer and antonin scalia and a group of students discuss the different theories of how to interpret and apply the. It starts by excerpting some of justice scalias most.
Also mentioned is scalias historical look at how the living constitution approach seems to have taken. In an elegant and spacious room, justice scalia joined two professional tenors at the piano for a medley of songs. Supreme court justice antonin scalia defined originalism this way. S elected w ritings and a rguments intercollegiate studies institute, 2008, 276. The constitution that i interpret and apply is not living but dead, or as i prefer to call it, enduring. It is the kind of fidel ity demanded by selfstyled constitutional originalists, like supreme. The constitutional catechism of antonin scalia yale law school. Justice scalia, the text of the written constitution is law, and the duty of the court is to interpret the constitutional text based upon its original meaning. But there are two speeches by scalia that can still help us understand the importance of constitutional interpretation.
March 11, 1936 february, 2016 was an american lawyer, jurist, government official, and academic who served as an associate justice of the supreme court of the united states from 1986 until his death in 2016. Originalism is now regarded as a respectable approach to constitutional interpretation. Original meaning and its limits justice scalia has prominently defended a version of originalism that demands adherence to the constitutions original meaning and, moreover, construes the original meaning of valueladen language, such as unreasonable and cruel, by reference to the applications it. For an extended excerpt from justice scalia s originalism, the lesser evil, click here. Part one lays out justice scalias version of originalism and why it must be discarded. Antonin scalias philosophy of legal interpretation by scott soames school of philosophy university of southern california to appear in justice scalia. Constitutional interpretationjustice scalia sovereignty. Federal courts and the law the university center for human values series scalia, antonin, gutmann, amy on.
This essay considers the late justice antonin scalias contributions to constitutional originalism as a practical methodology. Feb 18, 2016 originalism has been replaced with the living constitution when originalism was the accepted theory of interpretation, activist judges had to resort to lying about the meaning of the constitution to get the outcome they wanted, says scalia. Scalias argument about constitutional interpretation follows the same ba. Antonin scalia, the rule of law as a law of rules, 56 u. May 11, 2015 scalia said the most profound and significant departure from our nations constitutional structure and the principle of federalism protecting the states from federal power came in 19, when the. Justice scalia was the leading judicial theorist and advocate of originalism of his era, and his legacy has widely been assessed in those terms. Bork, justice scalia was, in his own words, one of a small hearty minority who believe in a philosophy called originalism 14 as an essential component of a government of laws and not of men. Original meaning and its limits justice scalia has prominently defended a version of originalism that demands adherence to the constitution s original meaning and, moreover, construes the original meaning of valueladen language, such as unreasonable and cruel, by reference to the applications it. Comparing and contrasting the constitutional approaches of. Justice scalias aim was to follow the constitution wher ever it took him, even if. Justice antonin scalias speech on constitutional interpretation covers the jurisprudential positions of constitutional interpretation. I was vividly reminded how important it was last week when the court came out with a controversial decision in the roper case. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. Justice scalia, the judicial method, and the adjudicative limits of originalism gary lawson if you conduct an online search for something like justice scalias most important opinions or justice scalias most influential opinions, you will or at least i did almost always.
Pdf in this article the author explains why antonin scalia was one of his favourite judges. But now that the constitution is considered to be a document that is living and evolving, the. Antonin scalias philosophy of legal interpretation usc dornsife. Judicial interpretation, an educational video that was a project of the annenberg foundation trust at. In the us, this canon has grown stronger in recent history. Selected theories of constitutional interpretation congressional research service 2 theories should be applied. Opinion justice antonin scalia and the dead constitution. Francisco when former president ronald reagan died in 2004, an outpouring of praise followed from across the political spectrum. This method of interpretation is called textualismoriginalism, and justice scalia was by far one of its greatest champions.
A comparison of scalia and the founders on how to interpret the. Think of a text of a statute or a constitutional provision as an ordered sequence of sentences, a linguistic object. For an extended excerpt from justice scalias originalism, the lesser evil, click here. Justice scalia had a theory of textual interpretation, for either statutory or constitutional texts. Supreme court justices scalia and breyer share candid. Scalia and constitutional property rights the washington post. Constitutional interpretation scalia boston college. Jul 05, 2019 hodges, as well as the dissent of justice scalia. Nov 22, 2016 justice scalias protectiveness of the first amendment flowed more from his views on stare decisis and his respect for precedent, rather than his originalist approach to constitutional. See moylan, judge moylan analyzes 198687 high court term, criminal practice manual. Throughout his writings, scalia argues textualism is the only acceptable form of constitutional interpretation.
Statutory interpretation after justice scalia victoria nourse justice scalia is rightly deserving of praise for his insistence that statutory interpretation return to the text. Antonin scalias philosophy of legal interpretation by. Feb 15, 2016 justice scalia did much to strengthen judicial protection for constitutional property rights. The purpose of this article is to focus on the part of justice scalias incredible legacy that concerns the socalled great debate in constitutional law between. Apr 09, 2008 justice scalia on constitutional interpretation.
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