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Antonin Scalia on Principles & Values
Supreme Court Justice (nominated by Pres. Reagan 1986)
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Founders engaged in explicitly religious official acts
One of the best compilations of explicitly religious official acts of the Founders that I've come across comes from Supreme Court justice Anton Scalia. It appears in one of his famous dissents, in a case in which the Supreme Court ruled that the Ten
Commandments could not be displayed at the McCreary County Courthouse in Whitley City, Kentucky:The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the
States, it enacted legislation providing for paid chaplains in the House and Senate.
The day after the First Amendment was proposed, the same
Congress that had opposed it requested the President to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God."
Source: America by Heart, by Sarah Palin, p.196-198
, Nov 23, 2010
Originalism is the way to interpret the Constitution
Scalia has no patience with so-called activist judges, who create rights not in the Constitution by interpreting the Constitution as a "living document" that adapts to changing values. "What's wrong with it [the living Constitution] is, it's wonderful
imagery and it puts me on the defensive as defending presumably a dead Constitution. It is an enduring Constitution that I want to defend. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."
Source: CBS News, 60 Minutes
, Feb 11, 2009
Inherited common-law tradition, & textualism to interpret it
Scalia's philosophy is found in his 1997 essay "A Matter of Interpretation": The justices of the US Supreme Court inherited a legal culture that we can call the common-law tradition. Judges develop principles of law that bind not only the parties in the
particular case but other judges handling future cases. These principles of judge-made law (outside the context of the Constitution) have governed important relationships in society.Justice Scalia summarizes the common-law tradition this way: "This
system of making law by judicial opinion: I am content to leave the process of developing the common law where it is."
But as the years went away, legislatures passed laws covering a wide (and ever-growing) range of subjects. Should the basic mission
of statutory interpretation be to determine the legislature's intent? Or something else?
Justice Scalia has a clear answer. It is, in a word, "textualism." For Scalia, textualism is not to be confused with what is frequently called strict construction.
Source: First Among Equals, by Kenneth Starr, p. 23-25
, Oct 10, 2002
Judicial philosophy: textualism over strict constructionism
For opponents, a living Constitution represents a judicial license to read into the Constitution what he or she thinks is right. Uncomfortable with this approach, conservative critics frequently insist on a strict construction.Justice Scalia shies
away from this description: "I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist." He elaborates: "A text should not be construed strictly, and it should not be construed leniently; it should be
construed reasonably."
How does textualism work? "In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words an expansive rather than narrow interpretation."
For an example, Scalia writes: "Hand-written letters are neither speech nor press. Yet surely they cannot be censored. Speech and press stand as a sort of synecdoche for the whole. That is not strict construction, but it is reasonable construction."
Source: First Among Equals, by Kenneth Starr, p. 26-27
, Oct 10, 2002
Bush v. Gore: leave recount process to Florida
The Court reversed the Florida Supreme Court decision ordering manual recount of presidential election ballots. A majority agreed that the recount violated the Constitution's equal protection clause, since counting standards varied among counties. The
decision effectively ended the presidential election, handing a victory to George W. Bush. OnTheIssues summary: - Holding (Rehnquist, Kennedy, O'Connor, Scalia, Thomas): "Any manual recount of votes seeking to meet the deadline would be
unconstitutional under the 14th Amendment." [Recount cannot be done fairly by the deadline].
- Concurrence (Rehnquist, Scalia, Thomas): "The state legislature has provided mechanisms for contesting election results." [no federal intervention needed].
- Dissent (Stevens, Ginsburg, Breyer, Souter): "Counting every legally cast vote cannot constitute irreparable harm. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." [Count every vote].
Source: InfoPlease.com on 2000 SCOTUS case Gore v. Bush
, Dec 11, 2000
Page last updated: Sep 21, 2020