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What Scalia's Theory Is Not
on December 13, 2006
Justice Antonin Scalia may be the most dynamic and melodramatic personality on the United States Supreme Court. His opinions burst with bombast. Oddly, Scalia has written very little about the law even though he served as a law professor before launching a career as a government attorney and judge. He has penned only a handful of law review articles. The articles are slightly more illuminating on his theory of jurisprudence, textualism, than is this thin book, "A Matter of Interpretation."
"A Matter of Interpretation" is filled up with a round table dialogue that Scalia graciously initiated to invite notable liberals to disagree with textualism.
In the brief paragraphs that Scalia allocates to himself, he sets out his principles of textualism, which is a combination of Latin parsing and historical analysis. In short, Scalia looks for a constitutional meaning in the actual words of the constitution, and if he cannot find a meaning in the set text, he embarks on an historical investigation of whether the rule or right existed in English common law at the time of the writing of the U.S. Constitution.
Scalia's textualism, therefore, is a good deal more involved than mere glancing at words written in the late 18th century. In fact, Scalia protests that he is not a "strict constructionist," not a justice who merely looks blindly at James Madison's handiwork. Scalia claims that he does not read the Constitution strictly, but rather he reads the Constitution reasonably.
This will no doubt come as a shock to a generation of law professors, law students, and attorneys, who have maintained that Scalia is a rigid strict constructionist. This revelation may also undermine Scalia's reputation as a writer of court opinions and dissents that are always consistently and impressively logical.
It may also come as a shock that Scalia, the titan of tradition, partly bases his textualist theory on the ideas of Justice Oliver Wendell Holmes, the man who insisted that law changes with the times, or reflects "the felt necessities of the time."
The weakness in Scalia's historical origins method is that more importance is placed on English common law than revolutionary American experience. A reason perhaps that Scalia is a staunch defender of free speech, long a principle of English law, and lacks sympathy for search and seizure defendants, persons caught up in the Fourth Amendment right, a right inspired by the searching of Boston homes by British troops during the Revolutionary War.
Scalia's textualism, as set out in this book, is a good deal more flexible than many of his disciples or opponents would give him credit for. Scalia tends to apply this "historical "orgins" method most often in areas such as punitive damages, an area of law which has scarcely changed in centuries. However, in cases where the issue implicates modern rights, such as abortion, Scalia has departed from textualism completely for rationales ranging from stare decisis and reliance to a more or less nihilistic rejection of substantive due process.
Nevertheless, "A Matter of Interpretation" places Scalia in the pantheon of legal scholars, such as Holmes and Judge Richard A. Posner, who have bravely put forward their own theories of jurisprudence. And in the end, this theory, rather than his bombastic rhetoric and conservative prosyletizing, will probably be his enduring legacy.
[Hansen Alexander is an attorney in New York City and author of the introductory law text, "A Tort is Not a Pastry."]