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Undoubtedly,
Scalia has impacted the American society in many ways with his forceful
opinions and the role he has and continues to play on such issues as school
prayer, abortion, gay rights, executive privileges, qualified immunity and
capital punishment. Sometimes referred to and an ideologue, Scalia will
nonetheless continue to make impressions in the judicial system of America.

Scalia’s main concern, in his short but spirited essay, is with
issues about how judges should interpret statutory and constitutional law in a
constitutional democracy. His central contention is that the rule of law within
a constitutional democracy requires that interpretation be constrained by the
original meaning of legal texts, as applied to present circumstances, rather
than by extra textual sources, such as the intentions of the framers or past or
present moral and political deals. Only a textualist approach to interpretation
will ensure the rule of law, rather than a rule by individuals. Scalia
contrasts the quasi-legislative aspects of common-law adjudication with
statutory and constitutional adjudication and inveighs against what he sees as the
modern infestation of common-law methods in statutory and constitutional interpretations.
Scalia’s commentators fall into two main camps: those who accept the terms of
Scalia’s contrast between textualism and its rivals (Wood and Glendon) and
those who favor a more principled conception of textualism (Tribe and Dworkin).
Wood shares some of Scalia’s concerns about the tension between common law
methods and constitutional democracy but challenges Scalia’s view that the
growth of judge-made law is a recent phenomenon, arguing that there has been a blurring
of legislative and judicial functions since the inception of their public.
Glendon shares many of Scalia’s concerns about the principled basis of much
contemporary statutory and constitutional adjudication, some of which she also
attributes to the infestation of common-law methods. But she thinks that many of
the ills of statutory and common-law adjudication would be remedied if there
were greater attention paid to the common-law concern with precedent. Tribe
thinks that Scalia’s jurisprudence depends upon an untenable contrast between
judicial legislation that looks outside the text and judicial interpretation of
rules and principles to be found in the text of the constitution. In a similar,
but more satisfactory, response, Dworkin argues for a more philosophical
conception of textualism than Scalia is willing to recognize; key
constitutional provisions enact abstract moral and political principles that it
is the interpreter’s job to articulate and apply in a defensible way. To my
mind, Dworkin’s commentary is the best of the bunch and identi?es some serious concerns
about Scalia’s jurisprudence. The common law, Scalia thinks, represents the
imposition of judge-made law. Initially, a judge decides a case by invoking a
rule or principle that she ?nds politically attractive or rooted in traditions
of her community. The principle exerts pressure for future decisions to be consistent
with earlier ones. But consistency, as Scalia understands it, is a rather weak
demand, and the common law grows by judges adding new rules and principles or
qualifying 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 the
community but that come from sources that are external to existing rules and
principles. Scalia has no serious quarrel with the need for and appropriateness
of common-law adjudication in those parts of the private law not governed by
legislation.

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One might wonder why Scalia doesn’t conclude that courts should
simply remain silent where democratic legislatures have not spoken. But he does
think that the common-law approach to interpretation is inappropriate in areas
governed by enacted law—statutory or constitutional. In these areas, Scalia
argues, the rule of law and the institutional role of the judiciary as interpreters
of the law require that judges and other interpreters be guided by the language
of the enacted provisions. Appeals to the intentions of the legislators or
those of constitutional framers, the moral and political values of the
interpreter, 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 to
standards that were not democratically enacted; only the words of the provision
were democratically enacted. Some conceptions of interpretation represent many
interpretive claims as objects of reasonable disagreement that are inherently
controversial. Conceptions of interpretation that require interpreters to make
substantive normative judgments, to engage in historical reconstruction of the intentions
of 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 this
way. Whereas some think that only such conceptions can do justice to the
contested character of interpretive practice, Scalia, like others, thinks that any
such conception of interpretation is inconsistent with the rule of law: ”I do
not suggest, mind you, that originalists always agree upon their answer. There
is plenty of room for disagreement as to what original meaning was, and even
more 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 meaning
of the text. Often—indeed, I dare say usually—that is easy to discern and
simple to apply” (p. 45). His own textualism does not eliminate interpretive
controversy altogether, but he thinks it does limit disagreement and make it
tractable. One question is whether, as Scalia believes, a consistent textualist
can avoid or minimize interpretive controversy and disagreement. The meaning of
some statutory and constitutional provisions is dif?cult to dispute. The meaning
of the constitutional requirement that the President be at least 35 years old
and have been a resident of the United States for at least 14 years (Article
II, §5) seems pretty clear. But many statutory and constitutional provisions,
especially provisions in the Bill of Rights and the Fourteenth Amendment, use
general or abstract normative language—such as ‘freedom of speech’,
‘unreasonable search and seizure’, ‘due process’, ‘just compensation’, ‘cruel and
unusual punishment’, and ‘equal protection of the laws’. The meaning of such
language seems inherently controversial, inasmuch as people can and do form
different conceptions of these abstract concepts. No doubt the framers had
speci?c understandings or conceptions of how these abstract concepts were to be
interpreted, which led them to expect that these provisions would regulate some
activities and not others. But because they chose the abstract language, rather
than language that speci?cally targeted all and only the activities they
expected the broader language to cover, ?delity to democratically enacted law
requires ?delity to the best conception of the abstract concept, rather than to
the framers’ speci?c conceptions. For instance, the framers of the Eighth
Amendment may have been especially concerned with certain speci?c forms of
punishment or torture—perhaps the guillotine, the rack, and drawing and
quartering. But they chose language prohibiting all cruel and unusual
punishments, not just those that they then believed to be cruel and unusual.
That means that ?delity to the language of the constitutional provision
requires articulating and defending a substantive conception of the abstract
concept of unfair or morally disproportionate punishment, rather than
reproducing the framers’ speci?c conception of cruel and unusual punishment. But
then it’s hard to see how interpreters could try to ascertain the meaning of
provisions employing normative language without making explicit or implicit normative
commitments. Often, these normative judgments will be controversial, which is
what 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 acceptable
interpretive results. Consider Scalia’s own illustration of textualism. His brand
of textualism insists that ”a text . . . should be construed reasonably, to
contain all that it fairly means” (p. 23). He illustrates this brand of
textualism 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 relation
to.. a drug traf?cking crime’, the defendant ‘uses . . . a ?rearm’. The
defendant in this case had sought to purchase a quantity of cocaine; and what
he 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 the
defendant was subject to the increased penalty, because he had ‘used a ?rearm
during 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 statute
would understand the reference to the use of ?rearms to be restricted to their
use as weapons, and not to include their use as barter. But this sensible interpretive
claim cannot be defended by appeal to the meaning of the language of the
enacted provision, independently of information about the general aims or goals
the legislators were pursuing in enacting the provision. But this is just the
sort of extra textual information that Scalia’s textualism eschews. To avoid
the interpretive absurdities of literalism, interpretation must appeal not just
to the meaning of the language of legal provisions but to reasonable
conceptions of the principles and aims that rationalize those provisions.
Scalia’s attempt to articulate and defend his interpretive methods is a welcome
development, even if his jurisprudence remains problematic. Though the Court’s
reasoning in particular cases is quite public, we often see too little of the
larger jurisprudential commitments on which speci?c interpretive claims depend.
One might hope that a more systematic public discussion of these matters would
help form more consistent and sound jurisprudential views on the Court.

Furthermore, his
adherence to the text before him makes Scalia reluctant to find constitutional
rights that are not clearly expressed in the Constitution or firmly grounded in
the American tradition. In two notable cases, Webster v Reproductive Health Services
(1989) and Cruzan v Director, Missouri Department of Health (1990), Scalia
openly rejected any constitutional basis for a right to an abortion or a right
to refuse life- sustaining treatment.

What is more, Scalia’s “textualist” approach has not only caused
controversy in the American society, but interestingly enough, he has prompted
his fellow colleagues to be more self conscious about their own interpretations
of the law and has even produced alliances with the more liberal members of the
Court in defense of rights that he considers to be unequivocally expressed in
the Constitution or rooted in ancient tradition. As sited by an article
entitled, ” High Court’s Colorful Man in Black” by Robert Marquand,
the Brady handgun case exemplifies Scalia’s “textualist” approach of
interpretation. In this specific case the issue was whether local or state
police could be required to enforce a federal policy about checking the
background of people buying firearms. A 4 to 5 majority decided that they did
not have to. However, Scalia who wrote for the Court, argued that the plain
text of the Constitution sets out an equal separation of powers between states
and the federal government. As a result, his opinion bypassed the history of
the federal-state relations as ruled on by the Court over time. Put in more
plain and expressive terms, the article noted that Scalia “rejected any
‘balancing analysis’ that would give more weight to federal than state
government.” (pg 2) However Scalia says it best when he in his opinion on
the case wrote, “it is no more compatible with States’ independence and
autonomy that their police officers be dragooned into administering federal law
than it would be compatible with the independence and autonomy of the United
States that its officers be impressed into service for the execution of State
laws.”

Nonetheless, Scalia has dissented from the majority on numerous cases, too
extensive to expound on here. Among such cases to site just two, are the
Maryland v Craig (1990), a decision that permitted children testifying in abuse
cases to do so by closed-circuit television on the ground that it was
inconsistent with the Sixth amendment, which protects the right of the accused
to confront his or her accuser and when the Court upheld the validity of a
mandatory drug-testing program for customs employees, explaining that in his
view it violated the Fourth Amendment’s prohibition against unreasonable
searches and seizures.

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