Justice Scalia on Interpreting Constitutional Texts

[T]he Great Divide with regard to constitutional interpretation is not that between Framer’s intent and objective meaning, but rather that between original meaning (whether derived from Framer’s intent or not) and current meaning.The ascendant school on constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and "find" that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures. Recall the words I quoted earlier from the Fourth-of-July speech of the avid codifier Robert Rantoul: "The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built without the authority of interference of the legislator." Substitute word "people" for "legislator," and it is a perfect description of what modern American courts have done with the Constitution.
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It certainly can not be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that "evolving standards of decency" always "mark progress," and that societies always "mature", as opposed to rot. Neither the text of such a document nor the intent of its framers (whichever you choose) can possibly lead to the conclusion that its only effect is to take the power of changing rights away from the legislature and give it to the courts.

Source:
Scalia, A. (1998). A Matter of Interpretation: Federal Courts and the Law. (A. Gutmann, Ed.) Princeton University Press.

Justice Scalia on Lack of a Guiding Principle for Evolution of Constitution

My pointing out that the American people may be satisfied with a reduction of their liberties should not be taken as a suggestion that the proponents of The Living Constitution follow the desires of the American people in determining how the Constitution should evolve. They follow nothing so precise; indeed, as a group they follow nothing at all. Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole anti-evolutionary purpose of a constitution, is that there is no agreement, an no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation. What is it that judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.
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[T]he difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable.

Source:
Scalia, A. (1998). A Matter of Interpretation: Federal Courts and the Law. (A. Gutmann, Ed.) Princeton University Press.

One should consult the text of the statute, only when the legislative history is ambiguous

In the past few decades, however, we have developed a legal culture in which lawyers routinely – and I do mean routinely – make no distinction between words in the text of a statute and words in its legislative history. My court is frequently told, in briefs and in oral argument, that "Congress said thus-and-so" – when in fact what is being quoted is not the law promulgated by Congress, nor even any text endorsed by a single house of Congress, but rather the statement of a single committee of a single house, set forth in committee report. Resort to legislative history has become so common that lawyerly wags have popularized a humorous quip inverting the oft-recited (and oft-ignored) rule as to when its use it appropriate: "One should consult the text of the statute," the joke goes, "only when the legislative history is ambiguous." Alas, that is no longer funny. Reality has overtaken parody. A few terms ago, I read a brief that began the legal argument with a discussion of legislative history and then continued (I am quoting it verbatim): "Unfortunately, the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory language." – (Scalia, 1998)

Source:
Scalia, A. (1998). A Matter of Interpretation: Federal Courts and the Law. (A. Gutmann, Ed.) Princeton University Press.

Reminder: Flag Day is on Sunday, June 14, 2009

Tis the Star Spangled Banner, oh, long may it wave, o’er the land of the free and the home of the brave!

"[T]his flag, which we honor and under which we serve, is the emblem of our unity, our power, our thought and purpose as a nation. Though silent, it speaks to us of the past, of the men and women who went before us, and of the records they wrote upon it." – President Woodrow Wilson

Justice Scalia on “Formalistic” nature of Textualism

Of all the criticism leveled against textualism, the most mindless is that it is “formalistic.” The answer to that is, of course it’s formalistic! The rule of law is about form. If, for example, a citizen performs an act—let us say the sale of certain technology to a foreign  country—which is prohibited by a widely publicized bill proposed by the administration and passed by both houses of Congress, but not yet signed by the President, that sale is lawful. It is of no consequence that everyone knows both houses of Congress and the President wish to prevent that sale. Before the wish becomes a binding law, it must be  embodied in a bill that passes both houses and is signed by the President. Is that not formalism? A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism. It is what makes a government a government of laws and not of men. (Scalia, 1998)

Source:
Scalia, A. (1998). A Matter of Interpretation: Federal Courts and the Law. (A. Gutmann, Ed.) Princeton University Press.

149 days of No Television. So far so good

It has been 149 days of No Television for me i.e. I haven’t watched television for 4 months, 29 days. My new year resolution was to stop watching TV. So far so good. I plan on keeping my resolution. I no longer have the urge to watch TV.

So what do I with all the free time? Well now I have more time for riding my bike and working out at the gym. Which I do regularly.

Also, since the beginning of this year I have read 17 books. That is almost 1 book per week. I think I have read every book and essay by Justice Scalia. I have also read all the books by Justice Frankfurter that are available at Santa Clara Library and the Martin Luther King Library in San Jose, CA.

Right now, I am reading the biography of Justice Oliver Wendell Holmes by White. An excellent book.

I plan to finish at least 50 books by year end. Wish me luck!

Justice Scalia on “Intent of the Legislature”

In reality, however, if one accepts the principle that the objective of judicial interpretation is to determine the intent of the legislature, being bound by genuine but unexpressed legislative intent rather than the law is only the theoretical threat. The practical threat is that, 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. When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean. (Scalia, 1998)

 

Source:
Scalia, A. (1998). A Matter of Interpretation: Federal Courts and the Law. (A. Gutmann, Ed.) Princeton University Press.

I will follow this highway back to you

Riding down a moonlit mile,
feelin faded in blue
thinking of that old Chevrolet,
summer nights and yo
a showroom beauty from ‘69
it seems so long ago
since you sat there by my side,
playing with the radio
I will follow this highway back to you
and we can fall in love again in old chevy blue

Can you please tell me the name of this song and who wrote it?

Common Law

It should be apparent that by reason of the doctrine of stare decisis, as limited by the principle I have just described, the common law grew in a peculiar fashion – rather like a Scrabble board. No rule of decision previously announced could be erased, but qualifications could be added to it. (Scalia & Gutmann, 1998)

 

Source(s):

Scalia, A., & Gutmann, A. (1998). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.

Václav Havel

The law is only one of several imperfect and more or less external ways of defending what is better in life against what is worse. By itself, the law can never create anything better…. Establishing respect for the law does not automatically ensure a better life for that, after all, is a job for people and not for laws and institutions – Václav Havel, Czech playwright, essayist, former dissident and politician