Antonin
Scalia rose to the position of Supreme Court Justice in 1986. In twenty-seven
years as a member of the only American court to have both original and
appellate jurisdiction, Justice Scalia has consistently argued for his method
of determination he calls “textualism”. Scalia’s major essay and responses were
published in his 1998 book A Matter of
Interpretation[1],
this book also features objections from Gordon S. Wood (Professor, Brown),
Laurence H. Tribe (Professor, Harvard) Mary Ann Glendon (Professor, Harvard)
and Ronald Dworkin; who passed away on Valentine’s Day 2013, after a long
battle with Leukemia at the age of 81. Textualism can be defined as a process
of defining language and deducing the meaning based on “text and tradition” not
“intellectual, moral, and personal perceptions”, which according to Justice
Scalia would constitute a government of laws not men.
Scalia
opens his essay commenting on how when one begins to study general law it initiates
a mental shift manifest in the methodology of analysis of information, and
gives full sense to the cliché of “thinking like a lawyer”. Scalia marvels at
some of the interesting ways common law can be contorted and combined with
other statutes till the desired outcome is achieved. However, Justice Scalia’s
job on the Supreme Court is not to judge common law but provide statutory
interpretation.
This is the first key distinction Scalia makes at the
beginning of the essay; and it is the difference between common law, used more
in smaller courts and most criminal trials; and statutory/regulatory
interpretation which Scalia states is the primary job of the Supreme Court.
This distinction plays a key role because textualism attempts to objectify, as
much as possible, the text within the context to draw a conclusion that is
logically consistent, even if circumstantially difficult. Justice Scalia
provides the example of the case of Maryland vs. Craig[2].
The case had reached the Supreme Court level because of the appeal to the Sixth
Amendment; the case was against an alleged child sex offender and the child was
said to be so traumatized that they could not face the accused in court and
thus set up a one-way television set for the testimony. That special
accommodation directly conflicts with the clear language of the Sixth Amendment
“...to be confronted with witnesses against him...”
Scalia
dissented in this case because it seemed so clear that text of the Sixth
Amendment had been contradicted. The inherent nature of this case namely, child
abuse, exponentially magnifies the emotional public response; however the
prosecution did not want to put the child on trial, thus could not sufficiently
satisfy the Sixth Amendment rights of the accused. Implied within his dissent
is a harsh truth of constitutional and statutory interpretation, that Justices
should not allow personal feeling of a case factor in the decision, to the
point where the defendant is assumed guilty.
Supreme
Court Justices are not moral arbiters but interpreters of legal language, same
as a musician in a symphony interprets prewritten musical language. Within this
analogy the Legislator and Constitution (Supreme Law) would be composers of the
music being played by the symphony. It is true that the piece of music may have
a solo; implying an individual’s interpretation, but a good musician will solo
in key with the song so that the two remain fundamentally connected. Likewise
judges read legal language and Justice Scalia believes they should stick to the
script as much as possible; without the metaphorical solos. The intrinsic
purpose of the Supreme Court however, is to be the highest court of the
Republic. So it comes as no surprise that the cases they generally receive are not
cut and dry decision, and even if we agree with the accommodation that was made
in this case it is beyond any doubt a violation of the Sixth Amendment.
Justice Scalia goes on to warn about cases of this nature
because they can seem innocent and even morally exemplary; but any case has the
potential to grow insidiously and be spread into common law and throughout the
legal system, to the point where false victims can make allegations without
ever facing the accused. The preservation of liberty requires diligence and to
contradict the language is in effect creating new statutes, this decision
expands the influence of unelected judge’s decisions into a legislative role.
Scalia fiercely rejects any type of legislative judiciary view and believes
that his job is to officiate and know the rule book, not continually change the
game as it goes. Without the core essence of textual intent the document is
rendered completely useless, we might as well draft a new constitution every
generation if we believe the application of the text to be dynamic.
Critics of textualism often say that strict
interpretation of the Constitution slows down societal progress, instead of
leading for social justice and other democratic ideals. This of course is
hardly a coherent objection if one understands the purpose of the language in
the Constitution to form a Republic, with certain individual rights guarded
from popular legislation; acting as a stabilizing mechanism and underpinning
the core values of the Republic.
Innovation of technology through creativity leads the trajectory of a
society; the court’s job is to interpret the Constitution along the same lines
as was textual and contextually implied. For example, the First Amendment has
no mention of the internet or telephones among many others; yet when Congress
attempted to pass the SOPA bill[3]
the people killed the bill before it could even get to the Supreme Court.
Again, Scalia seems to be pointing out the very nature of the role as Supreme
Court Justice because if the people believe a bill violates their rights it
generally will not make it the whole way to the Supreme Court. That is why the
cases they do receive concerning Constitutional or statutory law must stay in
tune with the Constitutional language and precedent.
Throughout the essay Scalia makes the point that because
the Supreme Court has such an odd relationship in respect to the notion of
democracy, the Supreme Court has the potential to grow further away from the
Judicial Review paradigm (which was not bestowed upon the Supreme Court at the
conception of the constitution, and many framers were against the court having
the power of Judicial Review). Reliance on Legislative History or Legislative
Intent in Justice Scalia’s view is insufficient means to take a stance on a
vote, and will inevitably lead to an even messier maze of cognitive dissonance
and moral ambiguity.
Justice Antonin Scalia has a very polarizing effect,
recently I watched Rachel Maddow go on The
Daily Show with Jon Stewart and accuse Scalia of “trolling” and just saying
outrageous things for the publicity or shock value. One thing that must be
acknowledged is his consistency in his methodology of a decision; which is the
greatest quality one can look for in a person whose job it is to make
interpretive decision, such as a referee. All that can be truly asked for is
that a foul in the first quarter is called the same in the second quarter;
likewise for judges a violation of a statute is a violation of a statute
regardless of circumstance.
Bibliography
"Maryland v. Craig." Supreme Court Ruling,
Washington D.C., 1990. http://www.law.cornell.edu/supct/html/89-478.ZD.html
House of Representatives. "Stop
Online Piracy Act." House Resolution 3261, Washington D.C., 2011.
http://www.govtrack.us/congress/bills/112/hr3261
Scalia, Antonin. A Matter of
Interpretation. New York: Princeton University Press, 1998.
