I have two thoughts that are totally different.
1. Scalia argues, “As soon as the discussion goes beyond the
issue of whether the Constitution is static, the evolutionists divide into as
many camps as there are individual views of the good, the true, the beautiful.
I think that is inevitably so, which means that evolutionism is simply not a
practical constitutional philosophy” (45). But could textualism be just as
impractical, leveling evolutionism and textualism to the same philosophical plane?
Debate about what is good is important. Maybe this is sacrilegious to
constitutional law and has too dramatic consequences, but it is possible that
the Founding Fathers were not perfect human beings who were infinitely smarter
than anyone that exists now. Maybe their conception of good, is not a perfect
conception, and, thus, we should revise it.
If this is a reasonable assumption, then debate over what is good is
important. Can we diverge from what the Founding Father thought of as good, if
it seems impractical, in order to pursue our own conception of good, if we deem
it best for society?
2. Scalia remarks that we can reasonably assume that
handwritten letters are protected under the First Amendment as speech and press
“stand as sort of synecdoche for the whole” (38). Reasonable assumptions are permissible. When
does reasonable assumptions become gross interpretations? As Dworkin asks, “Why is [Scalia] so sure
that the Equal Protection Clause did not always forbid discrimination on the
grounds of age, property, or sex?”. Reasonability and reasonable assumption
stand at either side of his spectrum, but Scalia never points out where the
tipping point is.
On your second point, I too think Scalia's usage of the "reasonable" is unqualified. A claim that some understanding is "reasonable" without any larger justification as to why it is so (based on societal conceptions, a larger account, etc.) does not carry such force. Accordingly, Scalia's language (at parts, like here) weakens his overall account. The historical evidence as to what the founders intended or how society would perceive certain texts is necessary for each conclusion that Scalia makes because his broader reasoning is so rested in these conceptions. I think that the case of the Equal Protection Clause reflects this issue because he appears to be both advocating for a changing conception of the clause but denying that its fundamental meaning had not changed.
ReplyDeleteI think Scalia judges what's reasonable and what isn't based largely on context. He bases what "discrimination" means under the Equal Protection Clause based on what was considered to be discriminatory at the time of its creation. I think it's important to note that Scalia actually says that the Equal Protection Clause does not allow discrimination on sex, age, etc., but that it does allow what we today might think are discriminatory practices because those practices WEREN'T considered discriminatory at the time of the Clause's authoring.
ReplyDeleteI agree with Francesca's comment about the unqualified use of the word "reasonable". One of my main thoughts during these readings was how important certain words are and their definitions. Words can often be ambiguous and I think "reasonable" is definitely one of those words. Scalia's definition of reasonability could be different from others' definitions and thus different parties can make different "reasonable" assumptions about the same language. For example, Dworkin's discussion of "cruel and unreasonable" punishment works through multiple interpretations of this language. I would say that any of these interpretations could probably be determined "reasonable" but it is clear that Scalia would not agree with all the various interpretations of this language. He writes that "words do have a limited range of meaning and no interpretation that goes beyond that range is permissible," but I would argue that Dworkin's comparison between semantic-originalist and expectation-originalist interpretations of "cruel and unusual" seem to be within a "range of meaning" for those words. I know that I kind of tweak Scalia's use of reasonableness in my comment here, as he is talking more about contextual meaning of words and Dworkin is talking about historical meanings but I think this demonstrates that "reasonable assumption" to justify an interpretation does not seem very strong.
ReplyDeleteAnna, on your first point, I think that Scalia is just not concerned with whether the constitutional principles laid down or good or bad. What matters is what people who ratified the document thought they were agreeing to, and the role of judges in interpreting that agreement. If society wanted to move to a new conception of what is societally good, they could definitely do that, but through the legislature and not the courts.
ReplyDeleteI totally agree.But I am not so much concerned with these legal processes. I think what I am curious about is why that agreement should still have standing 200+ years later. What can be gained from textualism that adds value to constitutional law that is so much better than the advantages of The Living Constitution" perspective? Why force an ancient document to fit our current value systems and ideology at all?
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