Scalia: It’s Other Modes of Constitutional Interpretation ‘That Are Novel and Have to Justify Themselves’
August 10, 2012 - 9:39 am
Supreme Court Justice Antonin Scalia said on PBS yesterday that his new book, Reading Law: The Interpretation of Legal Texts, highlights what he says is the only way to interpret the Constitution: “that branch of textualism that’s called originalism.”
“The process is not novel. I didn’t make it up,” Scalia said on Newshour. “It shows that it is historically what American judges did, what English judges did. And it’s the other modes of interpretation that are novel and have to justify themselves.”
“Even those who would be textualists don’t know how to do it very well because it has not been taught in law schools,” he added.
The justice brushed off the usual label he’s given: “strict constructionist.”
“I have never been a strict constructionist and advise no one to be a strict constructionist. Strict constructionism gives a bad name to textualism. For example, if you were to interpret the First Amendment strictly, you would come to the conclusion that Congress can censor handwritten letters, because it says Congress shall make no law abridging the freedom of speech or of the press,” Scalia said. “A handwritten letter is not press, it’s not speech, so Congress can — of course, not. That — that’s not what it means. Speech and press is meant to cover the ground of expression.”
The justice was asked whether he thought Chief Justice John Roberts was following these canons in his ObamaCare ruling.
“I obviously didn’t think so, because I dissented,” Scalia said. “I wouldn’t have dissented if I thought that was a proper application of textualism. I did not.”
“…In all of our prior cases, we said that, even if you call it a tax, if it’s being imposed for the violation of a law, it’s a penalty. And this one wasn’t even called a tax. It was called a penalty.”