Scalia discusses two distinct types of interpretation in his
initial essay, statutory and constitutional. Statutory interpretation, for
Scalia at least, only looks at the text itself to offer a reasonable
interpretation. He identifies two major problems with a non-textualist method,
namely one that uses legislative intent. The first problem is that, because of
judges cherry-picking elements of the record and the modern functioning of
Congress, it “is much more likely to produce a false or contrived legislative
intent than a genuine one.” (32). The second is the inherent challenge it
provides to democratic government and the separation of powers, particularly
how it constrains the power of the legislature to the benefit of judges (18).
Personally, I find this to be an engaging case at the statutory level because
of how it engages interpretation at both the theoretical and practical level.
When Scalia moves to constitutional interpretation, he
attempts to apply his textualist method to the Constitution. Due to the nature
of the Constitution, though, he can really only give a theoretical
justification for his views. Even with its immense practical consequences,
constitutional interpretation is more about what an abstract idea like freedom
of expression entails, rather than a clear-cut ban on forced quartering of
soldiers. This seems to create problems for Scalia’s argument, especially when
he discusses something like the tyranny of the majority. He’s particularly
concerned that, under an evolutionary interpretation, the Bill of Rights “will
be committed to the very body it was meant to protect against: the majority.” (47).
Despite his concern for politicized judges, that doesn’t seem to matter much if
everyone agreed with Scalia. Everyone, using the same original meaning, would,
instead of being influenced by modern majorities, be beholden to the original
majority’s view. As a result, Scalia seems to have not completely solved
problems he has on the theoretical side, much less the practical side.
On a side note, does anyone know Scalia’s thoughts on the Lochner-era Court, which invalidated
regulatory schemes on what is essentially economic freedom grounds? I would
love to know how he reconciles this with his view of the “rock-solid,
unchanging” Constitution of several decades ago.
I think you're right Tim, and I think Dworkin agrees with you. Dworkin writes on the difference between "semantic" originalism and "expectation" originalism, rightly classifying Scalia as the former. A "semantic" originalist, he writes, is one who, "insists the rights-granting clauses be read to say what those who made them intended them to say" (119). A semantic reading, then, "dates" the reading to an understanding of the justices' position. As you write, "Everyone, using the same original meaning, would...be beholden to the original majority's view." Dworkin, I think, would agree that a semantic reading simply perpetuates former interpretations, which could easily have majoritarian roots. Scalia's interpretations may be better than an evolutionary ones for other reasons, but protection against majority rule (or justices as legislators) is not one of them.
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