Justice Scalia’s Textualism: Brilliant or Perverse?

Written by Robert Justin Lipkin on June 15th, 2009

Justice Scalia insists that the Constitution be understood according to the most reasonable interpretation of the language used at the time to formulate and ratify the document. Yet, he writes:

The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means.  Or that the Supreme Court shall have the authority to disregard statutes by the Congress of the United States on the ground that in its view they do not comport with the Constitution.  It doesn’t say that anywhere.  We made it up.  Now, we made it up very sensibly because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law . . . and what the law means is the job of the courts.

Anyone have even a modest familiarity with law and logic should be incredulous at this statement. First, if the Constitution nowhere says that the Court is the final authority on constitutional meaning then for a Scalian textualist that should end the matter. Second, Scalia believes that the Court, at least in this case, can just make up constitutional meaning, absent any constitutional text at all, when there is in his view a good reason for doing so. Then how, with intellectually honesty, can he reject the notion of an implied right to privacy, including abortion and the right to decriminalized same-sex intimacy, when there is some textual support for these rights in the “liberty” provision of the Fifth and Fourteenth Amendments? Finally, whether it is exclusively the courts job to say what the law means is arguably something that not even Chief Justice Marshall made up. To insist that that’s the reason for permitting the Court to made up judicial supremacy in circular reasoning in the extreme.


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