Scalia Textualism Analysis

The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.

Scalia argues that the Constitution should not be interpreted too strictly or too leniently, but reasonably. Scalia argues that being a textualist is essentially interpreting the Constitution for what it says, not what they think it was trying to say. Scalia believes that interpreting the Constitution for what the framers meant it to say. However, he also believed that being a good textualist required not being too literal. If someone simply takes everything the Constitution says as gospel with no form of interpretation at all then it would constrict progress. The world today is extremely different compared to the world that the framers lived in when they wrote the Constitution. Which is why the sweet spot of textualism has to be found, not too literal and not too lenient either. Scalia also brings forth a counter to the argument against textualism, the one which he claims to be the most mindless, and that is that textualism is formalistic. Scalia says that of course it is formalistic because law revolves around formalism. Formalism is what makes a government a government of laws and not of men, says Scalia. Textualism is what Scalia based his interpretation of the Constitution and statutes on and this is quite evident in many of his famous opinions

This simply means that he believes that the constitution should be interpreted literally. Throughout the course of this paper, I will explain the similarities and the differences that are presented with each of these different views and what my opinions of these views are at the end.

In this book, Radicals in Robes, Cass Sunstein uses a classification system to describe the different principles that the Supreme Court justices use to interpret the Constitution and make decisions. Sunstein is a legal scholar, author and professor who has written many legal publications regarding constitutional law. According to Sunstein, the four approaches are fundamentalist, minimalist, perfectionist, and majoritarian. The factors that separate these judges are their political ideologies and interpretations of the Constitution. Namely, fundamentalism is a judicial theory which states

The American people have high expectations for the government, especially our court system. The courts are expected to solve disputes through enforcing laws set forth by our legislators, and to do so without bias. Typically, the courts fulfill their purpose in this way, but the task becomes much harder when there is no precedent, or when a changing culture causes backlash to precedent. Furthermore, a vague law or ideological question may also make an orderly dispute resolution a more difficult task than the courts were designed to handle. As the constrained court view would suggest, these are hurdles the courts must overcome in order to solve disputes and keep the integrity of the court system. According to this view, judges don’t

78; Gussen 2016, p. 404; Parliamentary Education Office (PEO) 2010, vii). Notably, the first judges appointed to the HCA were delegates to the Constitutional Conventions and strong proponents of federalism. Consequently, the early approach to constitutional interpretation involved translating the text with respect to the framers original intentions known as originalism. Essentially, this approach was influenced by federalist principles that sought to protect the position of the States. (Evans 2010, p. 10 & 16; Olds 2015, p. 242; Kirby 2003, p. 174; Twomey 2015, p. 98). However, alternative approaches to constitutional interpretation developed as new judges were appointed, bringing with them different opinions and views concerning the role of federal government (Olds 2015, p. 242; Twomey 2015, p. 102). Twomey (2013, p. 102) explains that the new judges appointed to the HCA did not participate in the Constitutional Conventions, and therefore did not have a contextual understanding of the framers federal vision. As a consequence, new approaches to interpretation were introduced, namely literalism, which concentrated on the natural meaning of the text, and legalism, which applied common law principles to interpretation. In particular, the literalist approach was evident in the majority’s

While Scalia presents a strong argument for textualism in these cases, nowhere does he focus more on the actual text of the Constitution then in District of Columbia v. Heller. In this case, Justice Scalia held for the majority of the Court that the District of Columbia law restricting gun ownership was in violation of the Constitution. In his opinion, Scalia looks very closely at the operative clause of the Second Amendment: “Right of the People.” In his examination of the phrase, Scalia looks at how it is used in other parts of the Constitution and the Bill of Rights where it refers “to individual rights, not “collective rights, or rights that may be exercised only through participation in some corporate body.” Scalia argues that the right to bear arms is a right enjoyed by individuals, not just groups. In his tedious examination of the text, Scalia also looks at the phrase “Keep and bear Arms,” which Scalia says has not changed in meaning from the 18th century definition of arms. More specifically, Scalia looks at the meaning of the term in the 18th century, where it had “a meaning that refers to carrying for a particular purpose – confrontation.” In combination with a study of history, Scalia understands that the Second Amendment conferred “the individual right to possess and carry weapons in the case of confrontation,” but did not make the right infinite. Therefore, certain reasonable

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:

Justice Scalia argued that originalist theory was the better option for interpreting the provisions in the Constitution. This topic fits into the Supreme Court’s responsibility of interpreting the Constitution to resolve public disputes. Scalia argued that non-originalism is incompatible with judicial review of constitutionality because it allows an expansion of contemporary freedoms. In other words, non-originalist theory allows judges to incorporate current societal values in their decisions with a limited consideration to the original intent of the Constitution. Justice Scalia’s reference to the Coy v. Iowa case illustrates this point because the witnesses were separated from the defendant during their testimony. Special consideration was

In the 1980 law review, “The Misconceived Quest for the Original Understanding”, Paul Brest challenges traditional approaches to Constitutional interpretation by proposing non-originalist adjudication, a method that “accords the text and original history of the Constitution presumptive weight, but does not treat them as authoritative or binding” (p. 70). This method directly conflicts with originalism, the method of interpretation supported by Antonin Scalia, but generally agrees with semantic intentionalism, the approach proposed by Ronald Dworkin. The difference in the outcome of nonoriginalist interpretation is especially seen in cases involving

The Constitution of the United States as a written document provides the outline and guideline for not only our governments operations but also how these literal words written down are to be read. This very strict and literal interpretation of the Constitution is the way the Constitution had always been interpreted by Justices, which is why this method is often referred to as Originalist Interpretation. However, within the last century, justices have strayed from this method of interpretation and started to read between the lines of the Constitution and view it as a “living document” that could be interpreted in a variety of ways to fit the needs of the society and the times and place it is governing. The Supreme Court has traditionally had

There seems to be two prevailing theories of interpretation in the Supreme Court the first being originalism which has been used most famously by both Justice Black as well as Justice Scalia although both reached their decisions by different methods. Justice Hugo Black and Justice Antonin Scalia were both originalist although they did differ in their methods. Originalism has a few main beliefs one being that judicial power should be constrained to exactly what is the original meaning of the Constitution. Some primary methods for the interpretation of the Constitution in regards to originalism are intent, that is what the framers and ratifiers intent was when the Constitution was written, textualism which can also be plain meaning like Scalia as well as the literal words in the Constitution and original public meaning being the “original conventional semantic meaning.” The other prominent theory is that of the living constitution or sometimes called non-originalism as well as evolutionism. The theory of the living constitution has the basic premise that the Constitution was not meant to be static or frozen but to evolve as we progressed as a nation and has sometimes been referred to as the workable government approach as it was called in United States v. Nixon in an opinion delivered by Chief Justice Burger.

In the “Hallmark of Effect Writing” workshop, we find that writing must be effect and for it to be effective it must be clear, concise, correct and be directed properly to its intended audience. (Hood,2011) I find that when I read case law I get a clearer picture of facts that are presented to a judge or to other legal professionals. I also get a clearer picture as to how our laws are originated through the congressional book Documents illustrative of the formation of the union of the American States (G.P.O.,1927). In this book one of the parts I liked when I first started reading was;

The Constitution was not created to, nor could, hold an unique interpretation for every era. In the words of Joseph Story, “The Constitution of the United States is to receive a reasonable interpretation of its language and its powers, keeping in view the objects and purposes for which those powers were conferred.”1 A living document holds an unique, changing interpretation by the era

There is nothing special about Karl Klare’s reasoning as to why the post-liberal reading of the Constitution is the only legally correct reading. I agree with Roux when he says that Klare’s postlibeal reading is a plausible one for the transformative constitutional project, however, there are no substaintial enough reasons to demostrate why he only arguesthat it is the only legally correct interpretation. Giving arguments such as, ‘the postliberal reading is intensly politically charged’ is not good enough reading why it should be prefered over other interpretations of the constution. Ultimately, this essay will show that there are actual logical reasons--as given by Roux--that lead us to prefer “Klare’s” theory of constitutioonal interpretation.