Wednesday, March 11, 2015
Scalia's Abstraction
I'm wondering what everyone thinks of Scalia's response to Dworkin's criticism, in which Scalia says that his interpretive method of the Constitution is both abstract and dated. For instance, Scalia says that he agrees with Dworkin that the Eighth Amendment is an abstract principle; and "if [Scalia] did not hold this belief, [he] would not be able to apply the Eighth Amendment (as assuredly as [he does]) to all sorts of tortures quite unknown at the time the Eighth Amendment was adopted" (145). However, Scalia qualifies this type of abstraction by saying that "What [the Eighth Amendment] abstracts, however, is not a moral principle of 'cruelty' that philosophers can play with in the future, but rather the existing society's assessment of what is cruel" (145). Scalia's interpretation is therefore very much stuck (and he believes it should be stuck) on the perceptions and beliefs of the Founding society. However, we can go back and evaluate new developments in torture methodology, for instance, to determine what the Founding society would have thought if these types of torture had existed at the time. Scalia wants to say that this is still an abstract way of viewing the Constitution, but I have a hard time accepting that what Scalia is doing is abstracting in any meaningful way. I don't think it's really fair for Scalia to try to claim his interpretive method is abstract when really all he does is take new developments and test them based on fixed standards that can never change. Thoughts?
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I agree with your assessment- I don't think that Scalia's response is convincing. The fixedness of Scalia's interpretative standard inhibits the text to be applied on any abstract level that adequately permits for societal progression. Yes, we can take contemporary issues and consider how society at the time would have ruled on the issue- but how is this meaningful when the society could not have comprehended each and every development that has influenced such an issue? Further, questioning how individuals at the time of ratification would have decided "had individuals understood this" or "had this existed" is unfair. The founders of our country would likely not find themselves qualified to decipher questions of contemporary society. Although I don't find this criticism necessarily delegitimizing Scalia's account, Scalia could admit that his account is not abstract and instead is strengthened from it straight-forwardness.
ReplyDeleteScalia insists on time-dateness because he sees it as the only way to truly guarantee the word of the law. The flexibility of nontextualist readings is, to use an altogether original expression, a double edged sword.
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