Knowing the role that Scalia played in key Supreme Court decisions (like DC v. Heller, etc) largely influenced my initial feelings toward his overarching philosophies and how he goes about deciding cases. With that said, I found myself persuaded by Scalia's account of textualism.
Here's why: textualism provides a concrete standard for justices to abide by when considering greater Constitutional questions. Those justices who prefer to look for a broader intention of the text or to simply consider how we ought to go about using the text to reflect current societal beliefs do so without the strength of consistency found in textualism. Although Dworkin successfully emphasizes flaws within the details of Scalia's argument, I do not think that his critique adequately discredits textualism on a broader scale.
Lawmakers are elected to create laws- and these laws do not change without the amendment thereof. Indeed lawmakers maintain the responsibility to correct for statutes that no longer fit the interests of their voters, but this means that we must hold lawmakers to such a high standard rather than relying on judicial interpretation of the laws. This is more difficult, of course, for a document like the Constitution. However, the amendment process should not be neglected in its power nor purpose; although the process is complex and difficult for a number of reasons, the founders included it for a reason. As textualists would argue, we have the power to change the text and in result, the meaning of our Constitution.
But the judiciary is meant to be a check against majoritarianism. Strict textualist approach neuters the judiciary to the point of inefficacy.
ReplyDeleteSo what if they (being concrete) led to easier conclusions/judgements? Would it be the worst thing in the world that our judges do more work? I don't think I need to point out the problematic conclusions a time-dated textualist reading would arrive at (slavery!). It just doesn't seem good enough to me.
I really don't know quite what to think about this. My comment here and my blog are fairly schizophrenic.
I also found Scalia's argument for textualism more convincing. He gives examples on both extremes where one can be a textualist who defines terms in such was that are too literal and one who relies too much on legislative intent and not enough on the text. He identifies himself as a proper textualist who is not a strict-construction textualist and does not believe courts should rely on legislative intent. He gives an example about the Church of the Holy Trinity case, in which he thought that the other members were relying too much on legislative intent. He writes that paying attention to "the life-giving legislative intent… is nothing but an invitation to judicial lawmaking" (21).
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