Nagra Blog Post 10

 

In his comment to Justice Scalia’s essay, Laurence Tribe describes his contentions and agreements with the textualism the Justice supports. Tribe agrees with the Justice that it is not the role of judges to look into the intent or legislative history of those who wrote the statute in order to interpret its meaning. Tribe believes that it should be the meaning of the text, not the interpretation of the lawmakers or any other expectations that bind citizens to a particular statute or, in this case, the constitution. He disagrees with Scalia’s description of the great divide in constitutional interpretation. For Tribe, the divide is not who is an originalist and who is not, but who errs towards the effects of a statute and those who err towards what the statute says. Another place Tribe disagrees with both Dworkin and Scalia is their idea that there can be one concrete theory that separates which statutes are to be interpreted literally and which are to be construed liberally. Tribe admits that there is no one theory or philosophical device with which the judiciary can separate between the two (liberal or literal). 

Scalia’s entire voting and judicial history seems to support Tribe’s surrender to flexible-theory jurisprudence. Scalia didn’t hold to his textualist ideology on many supreme court cases and sometimes went as far as to go totally against it. I hold a few related, albeit most likely controversial, thoughts on the matter that Tribe describes. 

The United States is drunk on the idea that the founding fathers and the literal history behind the country’s founding are somehow the basis for how its progeny ought to live their lives. The founding fathers themselves didn’t follow much of the constitution with a literal interpretation, but they still understood its ideals. While I agree that there must be something that binds us together politically and culturally, I disagree with Scalia that it is somehow a set of 4,543 words written in 1787. It is not the words that support the ideals that govern our country but the opposite way around. The United States has a set of founding principles that are practically applied to our lives through written law and the justice system. These ideals, on their own, are rather impractical, with majestic and haughty wording that lacks application. How is one to apply the pursuit of “life, liberty, and happiness” to their daily run-ins with the judicial system? The form of interpretation that Scalia is arguing for ignores this fundamental idea of the judicial system. The constitution is not the supreme leader of the people of the United States, but the other way around. Who was it who even wrote the constitution and gives power to it by surrendering their individual sovereignty? 

As Tribe points out, to say that judges interpreting the constitution are performing “judicial lawmaking” by analyzing the constitution in a different light than textualists, Scalia misrepresents the entire concept of interpretation. Judges do not somehow come out with new laws out of nowhere (although Scalia would love only to cite the examples in which they do). They use the opportunity of a case to delve deeper into how a statute, interpreted liberally with reason, applies to the novel scenario. Is this not simply a clarification of what was already written? Scalia hopes to answer the unanswerable, and by doing so, fails to abide by the same standards he supports.

I would lastly like to discuss how Scalia’s textualism is inherently elitist. Circumstances of life in the United States change all the time; however, those near the bottom who are most marginalized almost always suffer. With its rigidity and lack of application, Scalia’s interpretation pushes these people aside and supports a judicial system that often looks away from their concerns. Scalia touts his textualism as a way to support the people in voting for their own representation and further their own legislation but fundamentally leaves those he claims to support behind. This idea is broad and needs further discussion in seminar, but the fundamental elitism to Scalia’s textualism is not only apparent but harmful to democracy.