Saturday, March 22, 2003

Justice Scalia as a strict textualist -- yeah, right

This is why some people are respected law professors, and others are opinionated lawyer-bloggers. Professor Balkin has done a masterful job (1, 2, 3) of explaining that Justice Scalia's self-portrayal as a strict textualist-originalist is not in sync with his votes on affirmative action cases. I, on the other hand, have the urge merely to say:

Justice Scalia strikes down laws only when the actual text of the Constitution, with the words understood as they would have been at the time of adoption, requires it? Yeah, right. And I can flap my arms and fly to the moon. See cases like Alden v. Maine (Justice Scalia joins the Court's slim majority in holding that the Constitution gives States a right not to be sued in state court for violations of most federal laws, when the text of the Constitution says nothing remotely like that) and Adarand (Justice Scalia stakes out an extreme position against federal affirmative action, without textual support or any indication that anyone in the 18th century would have understood the text of the Constitution to impose such prohibitions on the federal government).

Justice Scalia's constitutional interpretations are just like everybody else's: a mixture of textual interpretation of the Constitution, analysis of precedents, beliefs about what is central to the American vision of government and what is not, and preference. These things lead different people to different results; there's no point in pretending otherwise.

posted by sam 7:22 AM 0 comments

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