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.”
If something isn’t interpreted according to its original meaning, it can mean anything, can’t it?
This would seem to be so basic than a 1st grader could understand it.
But of course, they prefer exploitable anarchy, don’t they?
Well, Roberts was being a politician, trying to keep the faith of the one group that has been the court’s biggest set of backers (as long as it rules the right way). It’s no different than an elected guy keeping campaign contributors happy–and we all know the contortions of logic legislatures have used to justify what in reality is rent-seeking.
Still praying for the continued good health of Ginsburg and Roberts and Kagan and Sotomayer – at least until January 2013 (provided we have a win in November).
After that, wouldn’t hurt my feelings if they all went away.
There has to be some way we can remove Roberts!
If all else transpires as you said you wish, then why remove Roberts? He would no longer have to cower before or curry favor from the current administration. He would become a useful tool for a genuinely conservative court.
Once someone has betrayed that which they swore to uphold, they can never be trusted again. Even if you think you have them boxed in so that they have to act according to their oath, once they have broken it they may find a way to do so again. No plan is foolproof, because fools are so bloody ingenious.
Once Roberts wrote and held that while the government could not directly impose mandates that were unconstitutional; that they could do so in the guise of a tax; the Bill of Rights was gone. The Courts have abandoned the Constitution.
If the Constitution is to be restored, it is going to take a great deal of …. untidy effort. John Roberts will not be part of that restoration.
Subotai Bahadur
Ask Scalia what the Ninth means and be prepared to be shocked by this self annointed original textualist.
I rank him among the top five or ten justices of all time, but he still will not rule according to his own rule of interpretation. He struggles mightily with precedents that he publicly has stated are wrong but won’t lift a finger to overrule them. He ought to place precedent way down the list for examining the law in a case. Most times I would ignore it entirely as it is merely a way to fractionally amend the constitution.
So what does it tell you when a justice merits such personal praise but still can’t/won’t get the job done.
Roberts deserves all the attacks leveled at him but what about Ginsburg, Kagan and Sotomayer? Are they not even to be expected to honor their oath? It’s some how ok for them to blatantly shred the constitution? Why is this?