tag:blogger.com,1999:blog-1237087217187172116.post3041892897006843803..comments2024-03-27T18:18:11.525-06:00Comments on American Creation: Was Justice Scalia an Originalist? Brad Harthttp://www.blogger.com/profile/17669677047039491864noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-1237087217187172116.post-46098664924830368552017-04-03T21:55:28.866-06:002017-04-03T21:55:28.866-06:00Exc post. I'd say you're right about Scali...Exc post. I'd say you're right about Scalia's prioritizing 'textualism,' but that also overlaps with originalism.<br /><br />Perhaps the one nuance most critics are unaware of is that it's not original intent of those who wrote the law, it's the original meaning as understood by those who ratified or passed it. This gets into some tall weeds, as there can be honest scholarly disagreement as to what they believed they were approving. But the method of "original public meaning" takes out the 'mindreading' part of trying to put ourselves into their heads, a more subjective enterprise.<br /><br />And it's not the legislating from the bench that we see the left do so unapologetically. Whatever the limitations of originalism [or textualism], it beats the alternative of a judge making his own druthers and biases the measure of the law.<br /><br />This speech from 2005 is my favorite glimpse into Scalia's thinking.<br /><br />http://web.archive.org/web/20080116061700/http://www.joink.com/homes/users/ninoville/aei2-21-06.asp<br /><br />As to<br /><br /><i>if the texts aren't clear enough such that courts have to "fill in a gap"</i> <br /><br />Scalia would simply reply that where the Constitution is silent, it is silent, which is where you aptly point out, is properly left to the people, and the democratic process.<br /><br />_____________________<br /><br />"Those of you who are lawyers will remember that, in the bad old days, that is to say, before <i>Erie RR v. Tompkins</i> [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! <br /><br />Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law. <br /><br />Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitutes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.<br /><br />And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . <br /><br />It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist."Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-36292044613617061192017-04-03T16:41:53.523-06:002017-04-03T16:41:53.523-06:00This comment has been removed by the author.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.com