Spangler Blog Post 10

In his response to Scalia’s original essay, Dworkin highlights the kind of intention that is necessary for Scali’s interpretation of textualism, that being sematic intention. While Scalia agrees with this classification, he disputes the defining of “semantic intention” in favor of “import” “because that puts the focus where [he] believe[s] it should be, upon what the text would be reasonably understood to mean, rather than upon what it was intended to mean,” (144). However, Dworkin goes on to claim then that Scalia fails to follow semantic intention by highlighting the way in which he applies Holy Trinity logic to 3 distinct statutes. By Holy Trinity logic, I mean the method of statutory interpretation that involves assumption and reference to the intention of the writers, regardless of the words plainly written.

In his criticism of Scalia’s analysis of the 14^th amendment, Dworkin claims that “the semantic originalist would dismiss [making school segregation illegal] as just what the framers and later generations of lawyers expected,” (124). He claims there is no distinction between all forms of discrimination and thus differential treatment under “equal protection of the law” violates the “perfectly general, abstract, and principled” language of the clause. Scalia responds that denial of equal protection on any discriminatory grounds is prohibited “but that still leaves open the question of what constitutes a denial of equal protection,” (148).

Here I believe Dworkin has conflated equal protection with equal treatment. For example, when we consider how equal treatment would undermine affirmative action, which is the objectively discriminatory act of preferential treatment based on race. While it is discriminatory, it does not provide grounds to claim violation of the equal protection clause, because of how it is attempting to rectify systemic racial injustices that have plagued the country since its founding. Affirmative action is principally based on the idea that the protection has not been equal in the past and attempt to rectify the problem, by using differential treatment to equalize the playing field. I find it interesting to note, however, that Scalia opposed affirmative action on the ground of the 14^th amendment despite contradicting exactly what he himself is saying.