In Order To Better Understand Justice Antonin Scalia’S

1975 WordsMar 9, 20178 Pages
In order to better understand Justice Antonin Scalia’s approach towards judicial interpretation it is essential that we first distinguish the difference between common law and statutory law. Common law according to Scalia is judge made law where precedents are established and used to decide future cases. On the other hand, statutory law is written law that is set down by legislators. Scalia makes the argument in which he explains that judges abuse their power by interpreting statutory text in the way a common-law judge would interpret common law. In turn Justice Antonin Scalia offers his judicial interpretation approaches as solutions to constrain judges who abuse their power. Justice Antonin Scalia was an originalist and a textualist…show more content…
Another critical problem that is addressed by Scalia is the idea of “legislative history”. Legislative history is basically the process within congress leading up to the passing of a statute. Committee reports, floor debates, testimonies and other history that occurred while the statute was being constructed is what judges go to when they want the decision to go in their favor (Scalia, 1997). Finding the subjective intent of a statue and looking into the legislative history poses a threat on our democracy. Scalia strongly upholds his belief that, “it is the law that governs, not the intent of the lawgiver” (1997 p.17), and provides to us what exactly this threat—or practical threat as he labels it—on our democracy is: Under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field. (Scalia, 1997 pp.17-18) Although Scalia refers to legislative intent in his quote, his idea still applies to the basic fact regarding the law as not what the text says, but what the writers meant. He explains that when judges take these approaches to interpret laws, they are playing common-law judge in the wrong type of law and therefore abusing their powers. Judges are not on the bench to create laws; that power belongs to the legislators. Scalia

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