Scalia - Cmmn-Law Curts in a Civil Law System Lecture 1: Scalia begins by examining what he calls the cmmn law attitude. Lawyers are trained up in the traditin f cmmn law, distinguishing between cases in an attempt t arrive at the best utcme in the case at hand. They ask, what is the mst desirable reslutin f this case, and hw can any impediments t the achievement f that result be evaded? They then set abut perfrming the brken-field running thrugh earlier cases that leaves him free t impse that rule - distinguishing ne prir case n his left, straight-arming anther n his right, highstepping away frm anther precedent abut t tackle him frm the rear, until (brav!) he reaches his gal: gd law. BUT this attitude is nt apprpriate t mst f the wrk that judges and even justices (even SCOTUS justices) d. Mst f this wrk is nt cmmn law reasning abut cases but statutry interpretatin r interpretatin f the Cnstitutin. But there s little agreement n a philsphy f statutry interpretatin, s Scalia sets ut t defend his wn favred psitin. Scalia argues fr his preferred philsphy f statutry cnstructin (that he calls textualism) and against a cuple f psitins with which his is ften cnfused: He argues against bth thse wh adpt a cnstructin based n legislative intent and against strict cnstructinists wh cnstrue the meaning f statutes strictly in terms f the meanings f the wrds as they wuld have been understd by the authr f the text. Against legislative intent, he argues that judges dn t lk fr subjective intent (that is, what the authr f the statute intended t cmmunicate r hw they intended it t apply) but rather bjectified intent (that is, the intent that a reasnable persn wuld gather frm the text f the law, placed alngside the crpus juris.) Subjective intent is t slippery: It s nt clear a crprate bdy like a legislature culd have an intent. Mst f the legislatrs prbably never read r understd the legislatin befre vting n it. They utsurced this wrk t staff and cmmittees, but the pwer f the legislature is t make laws nt t make lawmakers, s we can t take the intent f staff r cmmittees (in cmmittee reprts) as authritative. 1 P a g e
Even thse wh understd the law culd nt have understd it in the cntext f the whle bdy f law. But bjectified intent slides back int cmmn law, fr the judge is merely ging t substitute what he, as a reasnable persn, wuld have intended fr the fictinal intent f the legislature. S intent wn t d. (See Hly Trinity example) Against strict cnstructinism, he argues that we need nt a strict r lenient cnstructin, but a reasnable ne. (See the gun case) Fr the Textualist, the text is the law. The text is the law, and it is the text that must be bserved. Justice Jacksn: We d nt inquire what the legislature meant; we ask nly what the statute means. It desn t mean he s t dull t perceive the brader scial purpses f a statute, nly that he thinks judges have n authrity t pursue thse brader purpses r write new law...this is the jb f the legislature. The textualist is neither a literalist nr a nihilist. Wrds have a limited range f meanings, the meanings are t be understd in terms f hw thse t whm the law was directed wuld have understd them. Lecture 2: The aim f the secnd lecture is t cmplete the accunt f textualism (nw with an argument against legislative histry as a means f interpretatin) and then t develp his accunt f riginalism. Legislative histry was intended as a way t cnstrain interpretatin f legislative intent, but it has failed t d this. It has failed be a cnstraint because it t can be manipulated. It substitutes the intent f cmmittees and staff fr that f legislature, but this vilates the separatin f pwers utlined in cnstitutin. It has led t putting the cart befre the hrse. Lbbyists nw supply language t staffers knwing full well that it will be used in the curts interpretatins f statutes. See ALEC, American Legal Exchange Cuncil, expsed by The Natin in 2011 Kch ties 2 P a g e
Cnstitutinal Interpretatin (Originalism vs. The Living Cnstitutin) A Cnstitutin is an unusual text. It culd nt be cmplete because that wuld be an entire bdy f law. It is a framewrk, and thus in need f interpretatin. But hw shuld we g abut interpreting it? Fr Scalia, what matters is nt riginal intent but riginal meaning. He understands this in terms f hw the Cnstitutin was riginally understd by intelligent and infrmed readers. T adpt riginal intent as what matters wuld be t accept strict cnstructinism, but recall that Scalia rejects this view. What matters isn t what the framers intended but what they said. On the living cnstitutin view, what matters, accrding t Scalia, is nt riginal meaning but current meaning. Scalia defends riginalism by arguing against alternatives. Against strict cnstructinism, he argues that we can t knw what framer s intent was (we can t even be sure such a thing exists) He als argues that the way that judges use the idea f intent is prblematic, fr they dn t seek subjective intent but smething he calls bjectified intent This is shwn by the way in which judges interpret intent in the cntext f the whle bdy f law. N legislatr culd have understd the cnsequences f the law fr the whle bdy f law, s this des nt capture subjective intent. Objectified intent is the intent that a reasnable persn wuld have in adpting the clause in questin as law. But this is prblematic because the judge will judge herself t be a reasnable persn and will take intent t be just what she wuld intend, and what she wuld intend will be shaped abut hw she wants the present case t turn ut. The judge will slide back int cmmn law reasning. One way ut is t try t adpt a legislative histry, but this is prblematic as well. Mst legislatrs never read r understd the legislatin. They utsurced this t their staff r t cmmittees. 3 P a g e
If ne adpts legislative histry as a prxy fr legislative intent, then ne assumes it is permissible fr the legislature t make legislatrs (rather than make law), fr this gives ultimate authrity t the cmmittees that wrte the laws. But this is nt a pwer the legislature has Legislative histry is als manipulated by lbbyists wh write language fr the legislature t adpt in rder t frame the future interpretatin f the law by judges. Against the living cnstitutin, he argues essentially that it is anti-demcratic. The living cnstitutin view empwers judges as lawmakers and arbiters f cultural mrality, but this is the rle accrded the legislature by the cnstitutin. It des nt make fr a mre flexible law, but a less flexible ne. Reading liberties int the cnstitutin undermines the prergative f the legislature t make laws regarding thse liberties. Is this really undemcratic? It prtects the individual frm majritarian verreach. (Wilk) Dwrkin argues against Scalia by psing a kind f dilemma. Dwrkin tries t present Scalia with a dilemma. He can be an expectatin riginalist r a semantic riginalist. The difference between the tw is best illustrated by the hire the best persn fr the jb example. This is a dilemma because it presents Scalia with the chice between an bjectinable thery and his favred understanding f the Cnstitutin s meaning; Dwrkin claims that he can t have bth. Expectatin riginalism fits Scalia s arguments abut the Eighth Amendment, but is bjectinable. Semantic riginalism is s benign that Dwrkin himself claims t subscribe t it. But, Dwrkin argues, semantic riginalism desn t supprt Scalia s cnclusins abut what the Cnstitutin says. Scalia pts fr semantic riginalism. He says that the Cnstitutin sets ut abstract principles that the curts have t interpret and apply in nvel circumstances. These principles were nt meant t be limited t what the peple at the time knew. Fr example, he thinks that the Eighth Amendment rules ut trture using electrical equipment like cattle prds, bright lights, and recrded music, even thugh these things were unknwn in the eighteenth century. 4 P a g e
Bth are semantic rginalists, but they are semantic iginalists f different stripes:3 Scalia is cncerned abut a backsliding, an ersin f rights that the framers wanted t save and prtect fr all time. Dwrkin is mre ptimistic. Bth present an argument abut the cntext f the mre abstract rights in the cnstitutin 5 P a g e