Scalia believes that statutes and the constitution should be interpreted by only looking to the text and the meanings ascribed to the specific words in the text at the time the text was written, without regard for other external sources. If you’ve got a better moniker for that than “textualism,” I’d love to hear it.
Interestingly, Scalia himself doesn’t use the term, preferring “originalism” while simultaneously drawing a clear line between his view and the view of original intent folks (like Bork). Which makes quoting him a pain in the ass. I noted the distinction in bracketed text in my post above, but thought I’d point that out explicitly for clarity’s sake.
“Schplebordnik, we Iowans and former Iowans and temporary Iowans share a mystic bond … Our only President, for Christ’s sake, is Herbert Hoover.”
Yeah, well we Oregonians at least know our history. Hoover left Iowa at the age of 11. He spent his formative years, until he left for Stanford, in McMinnville and Salem. Oregon, not Iowa.
So you can’t claim Hoover (and why would you anyway; one of the current Democrat jibes at Bush is that he will be the first president since Hoover to have have a net job loss during his administration). You’ll have to fall back to Iowa’s true most notable citizen, Radar O’Reilly. Who I believe is in some way related to Bill O’Reilly…
Dewey, unless you are just looking for a fight, I ask you to look at the sentence in my post that gives you credit for directly answering a direct question. I was not aware that I was bitching at you, thank you very much.
Justice Scalia’s view that the meaning and application of the Great Charter can be determined within the four corners of the document has a certain seductive quality–sort of an “every man his own priest” approach to a long and complicated history. The wonderful thing about that approach is that it allows people who are determined to restrict the power of the central government to point to the Constitution and say that if the people at the Constitutional Convention and the people who wrote the Bill of Rights and the people who were in the Reconstruction Congress did not expressly deal with a question the Constitution does no provide an answer. The approach is apathetic to the idea that the Constitution is a special sort of thing that was intended to be malleable to adapt to and apply to circumstances that the Founders and the subsequent scriveners never anticipated and could not anticipate. It is in the end a false doctrine that vitiates some 200 years of jurisprudence.
It is, I repeat, a fig leaf to cover what in the end an outcome based approach.
If you want to talk about Justice Scalia’s public behavior (and the intemperate tone of some of his written opinions), the man’s manifest arrogance and failure to recognize that there are things that reasonable men can differ on, see Minty’s initial diatribe.
Hamlet, for what it’s worth I am Iowa, BA 64, JD 67, US Army 67-72, and small town general practice since then. The class of 67 in noted as the class that achieved damn near nothing and holds the record for paltry contributions to the law school foundation. We were and are a bunch of underachievers (with the exception of a couple of guys who went to Chicago or California).
Spavined, I’ll always remember your contributions in the Kent State murders thread. Since then, whenever I see your user name, I stop and read no matter what the topic. I do not think you’re an underachiever by any stretch.
Oh spare me. If by “unanticipated circumstances” you mean the application of legal reasoning to the advent of new technology, your view is decidedly false; Justice Scalia did not, for example, find that infrared searches were constitutionally permissible because infrared technology did not exist at the time of the authorship of the fourth amendment; indeed, he found the application of that technology to be unconstitutional. No strict constructionist, either from the Scaliaite textualist school or from the Borkian original intent school, ignores the difficult task of applying constitutional restrictions to new technology.
If, however, by “unintended circumstances” you mean the changing mores of society, I’d say the framers did in fact anticipate that such circumstances would arise – that’s why they wrote in an amendment procedure.
As for why that’s the proper remedy, rather than by creative judicial reinterpretation of extant constitutional text, and for why some variant of strict constructionism is the most appropriate method for constitutional interpretation, I refer you to my posts in the following prior thread: Rights? What’s a Right?. The back-of-the-envelope version is “it’s all about self-governance,” but there’s more and I’d rather not reinvent the wheel. **
Repeating it doesn’t make it so.
And I can’t help but notice that you completely ignored every point I raised in my post discussing the substantive criticisms of Scalia’s philosophy.**
And if you’d like to pick up on any aspects of that discussion, you are welcome to read any of the several posts I have already made in this thread in response to that diatribe and respond accordingly.
Yes, but one must be cognizant of the fact that your version of self-governance holds that whatever the majority desires is prima facie acceptable, no matter how it might impinge on how individuals wish to govern themselves. Unless, of course, a super-majority wishes to forbid the majority from doing as they wish. (And how likely is that, pray tell? The math isn’t promising.)
This is precisely backwards. The presumption should be that the burden is on the majority to demonstrate that it has the right to impose, not that the individual has the obligation to demonstrate that the imposition is unjust. In short, it’s not self-governance, in spite of your labelling it that. It would be more honest of you to argue for your theory of legal interpretation based on the virtue of majority rule, not self-governance, since that’s what you’re actually talking about.
Anyways, this “textualism” of which you speak frankly strikes me as fetishism. To think that a strictly literal reading of any text would provide adequate guidance for forming a civil society over the span of centuries is the same sort of thinking that holds that millenia-old religious tracts don’t need to be interpreted through the lens of the social context in which they were written, but should be taken literally.
The Constitution has been amended 27 times. There are a panoply of additional rights granted by state constitutions and by state and federal statute. The notion that the math doesn’t favor the protection of individual rights is, frankly, absurd. **
If a particular piece of legislation does not run afoul of constitutional rules, it is permitted. That’s our system. And those constitutional rules are themselves the product of democratic decisionmaking. To reach beyond what those decisionmakers wished is to unilaterally impose one’s individual moral worldview on the rest of the world. That is unacceptable in a government of the people, by the people and for the people.
There’s really no getting around the fact that the alternative to majority rule is rule by some minority. And we see how well that’s turned out over the course of history. **
While majority rule is an important component of what I’m talking about, it certainly isn’t the end of the story. Constitutional provisions and amendments constrain the power of future majorities to act, and rightfully so. The real question is, who is allowed to slap those constraints on – the people who are governed, or an unaccountable insular group of nine?
It is a mistake to paint me as a blind adherent to majoritarian rule. I agree that constraints need to be placed on the democratic impulse – from structural restraints (separation of powers, bicameral legislature) to actual restraints (first amendment protections). But those limits need to be decided upon by the people who have to live with them, and not imposed from above. **
Actually, it’s quite the opposite – a strict constructionist holds that constitutional text needs to be interpreted through the lens of the social context in which it was written. That’s the only way to truly get at what “the people” were seeking to accomplish when they wrote the text. Scalia and Bork differ in how they find that social context, but the basic goal is the same.
I admitted my affirmation of the consequent fallacy earlier, and so I hope that you will admit your bifurcation fallacy here. There are two alternatives you have not considered: unanimous rule and autonomous rule. You may (and likely will) ridicule them, but you may not summarily dismiss them.
The alternative to majority rule is not minority rule, but self-governance, i.e., liberty, individual responsibility, etc, etc.
You mistake the answers to two seperate questions:
What sort of justification is required for government to infringe upon libery?
When government is justified in infringing upon liberty, how ought that government be configured?
While the best answer to date to 2 is indeed majority rule, the mere fact that a government is structured such that the majority rules is not a sufficient answer to 1.
On preview, I see Lib has made a similar point in a much more succinct fashion.
We’ve had this discussion before, and I doubt we’ll resolve anything. You think democracy should trump liberty (with caveats). I think liberty should trump democracy (with caveats). I just wish you’d be more clear when you speak about self-governance, since whenever I hear that term I think first of governing oneself, and not of majority rule. The intuitive appeal that the term lends to your argument is the general sentiment of preferring not to be told what one can and cannot do. However, that is not the way you are using it.
Dewey, I’m sorry not to have gotten back to you earlier. I spent the afternoon literally repairing fences. Despite the increasingly snotty tone of you postings, the idea of so-called textual interpretation of the Constitution deserves consideration. Regrettable, I am no Constitutional scholar, merely a practitioner with a basic education. I do however remember when this strict construction/ original intent/ textual interpretation fad started. It was, so far as I can tell, an alternative theory conjured up by the not inconsiderable forces who were opposed to and at times nearly hysterical about the changes that were worked by the Warren Court in criminal procedure, civil rights, birth control and privacy rights. The concept was the creation of the forces of reaction–plain and simple. That is one reason I am suspicious of it.
If you apply the principals of strict construction/ original intent/ textual interpretation to, for instance, the facts of Brown v. Board of Education* or the Connecticut contraceptives case, to pick matters that are not as presently controversial as sodomy and abortion, it seem to me that the reactionary theories deny the court the power to rule as it did in those two cases because the 1868 Congress did not think about the education of Negro children in a unified public school system or the ability of people to buy condoms, or did not expressly provide for it in the Great Charter. The theory turns the Constitution into just another organic act to be read like any city ordinance dealing with curbing your dog or speed limits in school zones.
The Constitution, and particularly the first ten amendments and the Fourteenth Amendment cannot be both a general statement of rights and limitations and an ordinary legislative enactment to be interpreted according to the cannons of statutory interpretation. Justice Scalia, you tell me, stands four square for the “just another statute” approach by way of textual interpretation. I don’t buy it. I don’t buy it for a minute.
As I said, I’m no Constitutional scholar. I don’t know if you are or not. What I do know is that there is a major fight going on for control of the institution that is authorized to do the actual work. What I think is at risk is about 50 years of progressive decisions by the court. Whether the Federalist Society, the American Enterprise Institute, the Heritage Foundation and who knows how many more well funded reactionary think tanks will prevail is still an open question. While it may be way too pessimistic, this may well be a fight that money and bullshit will win. We get another Scalia on the Court (I’m thinking Mr. Ashcroft) and that fight is well on its way to being lost.
I don’t have much more to say, but I can play the “last word game” as long as anyone.
Another non-expert chiming in to ask why this conclusion is logical. Brown v. Board of Education was decided on an equal protection argument, and the foundation is not ambiguous: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It seems to me that Dewey already answered this in defining textualism and discussing Scalia’s decision regarding the use of infrared technology in searches, a circumstance not specifically contemplated by the framers. The fact that in “1868 Congress did not think about the education of Negro children in a unified public school system” would not impede the textualist in arriving at the Brown v. Board of Education decision, it seems to me, so long as he agreed with the notion that “separate” is inherently NOT equal.
Unanimous rule, which I take to mean rule by 100% consensus, effectively gives even the smallest minority veto power, which is effectively rule by minority.
Autonomous rule, which I take to mean something akin to “everyman his own government,” is fine if you’re alone on a desert island, not so fine for robust societies with frequent interactions between the citizenry.
But who decides when such a justification is appropriate? That’s the real question. Should impositions on liberty be justified by the people who actually have to live under those impositions, or by some insular body?
Majority rule is not impervious to moral reasoning, and is not immune to decisions that protect minority interests at the expense of the majority. It was men who voted to give women the franchise. It was whites who voted to give voting rights to blacks. In both cases, the voters saw their own political power diluted, but they did it anyway because it was the right thing to do.
Judges aren’t high priests. They don’t have a direct line to God. They do not have all the answers as to which restrictions are morally acceptable and which are not. There is no reason to believe they are in any way better suited to make those kinds of judgments than the people themselves.
There is no metaphysically correct answer to the question “how far should government go.” There’s only us, and our view of what sort of limits we’re comfortable with. We shouldn’t cede that power away to the judiciary; they should limit themselves to the limits we’ve all agreed upon. **
Au contraire. That is exactly how I am using it. What is judicial activism if not the judiciary telling the people “you cannot do that” on no greater basis than the judge’s individual conception of morality?
If yoiu “remember when the fad started,” you must be very old indeed. Strict constructionism as a criticism of what the court has been doing has been around since the federal government decided to charter a bank; Andrew Jackson was railing against activist judges long before Bull Conner’s day. Some other pretty smart guys picked up on the idea, too:
Strict constructionism is not a new idea. **
There is an equal protection clause in the Constitution. Strict constructionists would certainly reach the same result in Brown, although they would probably use somewhat different reasoning to get there. Indeed, Robert Bork addresses this point squarely in his book, The Tempting of America.
Strict constructionists would certainly not have reached the same conclusion in Griswold; they would have found the Connecticut law constitiutional, for the same reason that they would find the laws in Roe and Lawrence constitutional: there is no generalized right to privacy in the constitution, and to find such a right is simply a judge reading his or her own conception of morality into that document. **
Simply asserting it is so doesn’t make it so.
Certainly any number of statutes are written in fairly broad, sweeping language. You seem to agree that the courts can use the textualist approach to interpret those. The Constittuion is really nothing more than a superstatute – a statute that trumps all others. Why can’t it be interpreted similarly? Other than “because I don’t like the results”?
The problem with your approach is that it cedes too much power over to whoever’s in charge. Hell, in 1857, the Dred Scott decision read into the constitution a right to own slaves, even though it didn’t really exist. The only difference between that and Griswold is that we all seem to like what Griswold stood for. But from an analytical standpoint, the process used to create the rights in Dred Scott were manifestly similar to the process used to create the rights in Griswold.
If you only like the process when it’s turning out the decisions you like, and abhor it otherwise, then this really becomes a straight political game.
Despite whatever opinions you may hold about what is and what is not effective government, principles of logic in your argument apply. It is disappointing that you were unable or unwilling to admit your error. Your dodges notwithstanding, a bifurcation (or false dichotomy) is a fallacy that applies to people of all political persuasions, including whatever yours is.
We will disregard your analysis of autonomous rule, since all you have declared is that you don’t like it and that you prefer to discuss it in the most simplistic terms. Such a discussion would be fruitless for obvious reasons. But at least you acknowledge it to be an alternative that you did not consider.
Your analysis of unanimous rule, however, again violates logical principle, specifically as a fallacy of composition. Your assertion that “the smallest minority” has effective veto power is useless information since the same information holds for any arbitrary number in the group, including the whole group.
There is still time to take the high road by admitting both your mistakes and acknowledging that this assertion…
Lib, don’t be absurd. If de facto decisionmaking power rests in less than 50%+1 of the populace, then that is effectively minority rule. Putting lipstick on a pig doesn’t make it not a pig.
An item may be vetoed by any number, including a majority.
It still remains that this assertion…
…is logically false.
Even as you bluster, you have (perhaps unwittingly) admitted that autonomous government is indeed an alternative, albeit one that you deride and limit to an arbitrary hypothetical about some desert island.
It’s disappointing that after several posts, you won’t admit your mistake outright, and have now resorted to potshots about absurdities and pigs.
