Samir’s Selection 02/15/2016 (p.m.)

  • When Scalia joined the court, in 1986, the leading school of constitutional interpretation was the “living Constitution”—the claim that the meaning of the document evolves with changes in American society.

    Scalia brought with him the concept of “originalism”—that the Constitution should be interpreted as its eighteenth-century framers understood it. In practical terms, originalism gives constitutional sanction to conservative politics. It amounts to no protection for abortion rights, no recognition of gay rights, and no sanction for affirmative action or protective legislation to benefit racial minorities and women. Over three decades, Scalia won more than he lost, and originalism remains ascendant among political conservatives.

    In his most significant decision for the court’s majority, District of Columbia v. Heller, in 2008, Scalia transformed the understanding of the Second Amendment. Reversing a century of interpretation of the right to bear arms, he announced that individuals have a constitutional right to possess handguns for personal protection. The Heller decision was so influential that even President Obama, whose politics differ deeply from Scalia’s, has embraced the view that the Second Amendment gives individuals a constitutional right to bear arms…

    But his greatest achievement may have been in a less visible realm. In interpreting laws, he was the leading spokesperson for “textualism,” the idea that, when interpreting laws, courts should look not to legislative history, or congressional “intent,” but rather only to the words of the law itself. While originalism remains controversial within the legal community, textualism won support from nearly all his colleagues (all except Stephen Breyer). This means that the Justices will limit the reach of laws to their precise terms, expanding the court’s power over Congress…

    Scalia was a voice for conservative political views throughout his entire tenure. He voted for gutting the Voting Rights Act, and for deregulating political campaigns in Citizens United and subsequent cases. And of course he was in the majority in Bush v. Gore, which ended the recount of the Florida vote in the 2000 Presidential election.

    tags: law justice interpretation USSupremeCourt originalism textualism conservative liberal

  • What he did was change how we talk about the law… Today, journalists, radio talk show hosts and regular news junkies all talk about constitutional theory. And when they do, there is originalism and then there is everything else. No one is more responsible for the originalism “movement” than Justice Scalia. He made constitutional theory sexy.

    To liberal legal scholars, originalism looked dead by the middle of the 1980s. Academics had argued that there was just no reliable way to figure out the intentions of long dead people about matters they had never thought about. And in 1985, a famous paper by the constitutional historian H. Jefferson Powell showed that people like James Madison and Alexander Hamilton didn’t themselves believe that later interpreters should seek guidance in their intentions. Originalism seemed to be at war with itself.

    Justice Scalia was among the first to argue that constitutional interpreters should not be interested in the intentions of the framers but in the original meaning of the words they used. Original meaning turned out to be a life vest for the theory, keeping it afloat among conservative legal scholars and even some liberal ones…

    Liberals, meanwhile, have struggled to rally around a coherent alternative language in which to talk about the Constitution.

    tags: law constitution USconstitution USSupremeCourt theory originalism textualism ideology conservative liberal

Posted from Diigo. The rest of my favorite links are here.


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