A paean to the old curmudgeon I've always hated

I never thought I’d say this, but I love Scalia. He’s a superb writer: engaging, pellucid, smart, and most of all refreshing. He’s the kind of writer I hope to be on my best days. I found him irresistibly compelling in spite of my political inclinations as to otherwise. I think I’m a bit of a textualist now.

Let me try to describe Scalia’s position as well as I can: Scalia believes the right way to adjudge on laws and statues is to rule reasonably (scrivener’s error as an example of what’s unreasonable) on the primary basis of time-dated semantic intention. Scalia isn’t a strict textualist, and I don’t think it’s fair to caricaturize him as much. [Dear Nico: Scalia does not like abstracts one bit and I think he’d disagree with your characterization of his views.] He contrasts nicely against Dworkin, who advocates for an abstract moral reading of the Constitution.

There’s so much to talk about, but I think the most philosophically interesting is Scalia’s charge on pg. 22 that nontextualists views of constitutional law (I’m certain he counts Dworkin among them) are "not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that it is." I’m not entirely comfortably with this accusation: it seems to be that any reasonably robust theory of democracy, Rawls’ say, must and is able to account for such judicial interventions: democracy isn’t to be confused with majoritarianism, after all. Dworkin makes a similar response on pg. 127.

Scalia’s response in turn is especially piquant. He points out the fact that nontextualist approaches are in fact at greater mercy to majoritarianism. Most of the recent judicial decisions in favor of individual rights have coincided with majoritarian opinion; the judicial selection process have become toxically political. I don’t know to what extent his fears are justified – are “individual rights disfavored by the majority” truly jeopardized as he claims? – but I am hesitant to dismiss them out of hand.

It seems to me that a central theme to this debate is this: how much law-making/legislating is a judge to do? A nontextualist judge necessarily does more, a textualist less. I must say I lean toward the latter, regardless of my political affiliation. Leave the law-making to the legislators. As a non-resident alien, I move that we make the constitution amendment process a simpler one!