Justice Macalia Textualism

Good Essays
In his essay, A Matter of Interpretation, Justice Antonin Scalia lays out three key elements of textualism, which are also present in different approaches of statutory and constitutional interpretation. These elements guide other constitutional interpretations like, strict constructionism and living/evolving Constitution. The key elements which are present on the already mentioned approaches are: context, meaning and intent. Justice Scalia states in his essay, “in textual interpretation, context is everything” (Scalia 37), however, context is also everything when applying strict constructivism and living/evolving Constitution approaches. Moreover, context directs the way in which the Constitution is interpreted by the Justices who apply the …show more content…
For that reason, the element of intent has different applications between textualism, strict constructionism and living Constitution interpretation. (Scalia 16). For Justices who use textualism, the written words are interpreted as they are written in the text of the law. In textualism, there is no dispute when the letter of the law is clearly written (Scalia 16). Nonetheless, Justice Scalia argues that in the event that intent is not projected well, why not include the right materials for the court’s consideration? (Scalia 16). For that reason, the textualism approach views only the founder’s intent. On the other hand, for Justices who adhere to living/evolving Constitution approach, intent is interpreted in a different manner. For Justices who interpret the law with the living Constitution approach, intent is grounded on what the legislator meant when the law was written. Living Constitution approach, questions if perhaps the legislators misspoke when the law was written (Scalia 16). Moreover, for living Constitution supporters, intent evolves to suit the needs of a progressing society (Scalia 38). Additionally, in the living Constitution approach, the intent of the law is applied to society today. Although there is debate between the competing approaches, the application of the intent of the law is present in textualism, …show more content…
As argued by Judge Richard A. Posner, strict constructionism, or what he refers to as “legal formalism” adheres to principles of the law that are “too narrow” (O’Brien 204). Judge Posner further argues that in legal formalism, the text of the law is meant “to decide whether the right exists,” as they are written in the Constitution (O’Brien 204). By that account, although strict constructionism only reads the text and uses a literal meaning, it still applies the literal intent of the law. For that reason, Judge Posner argues that when using the element of meaning, Judges cannot make their decisions by reading the text directly (O’Brien 207). As Judge Posner states, the Constitution does not say, “read me broadly or read me narrowly” (O’Brien 207), as to suggest that the meaning of the text should not be interpreted

Related Documents

  • Decent Essays

    Whether or not lawyers and judges play a creative role in shaping the law depends on the legal reasoning we believe in (Part B) and what our conception of the law is (Part C). This essay will take the position that judges do shape the law, however the extent of which is contingent on our belief of what the law is. Consequently, the type of law we believe in, and how Part C impacts our views on the extent of judges and Parliament’s roles in determining the law will be discussed. The underlying logics of public law will follow, and the tensions they raise. Lawyers and judges playing a creative role is shaping the law Our view of judges, lawyers and Parliament is dependent on our view of the law.…

    • 1728 Words
    • 7 Pages
    Decent Essays
  • Decent Essays

    Government Vs Constitution

    • 1410 Words
    • 6 Pages

    He also argues that the judiciary merely has the power of judgment, rather than force or will, and that the judiciary depends on the other two branches to support its judgments. However, when the Supreme Court makes a decision, this decision stands since it is deemed “the supreme law of the land”. In Marbury v. Madison, Marshall argued that it is a responsibility of the Supreme Court to overturn unconstitutional legislation in accordance to the judges’ “oath or affirmation” to uphold the Constitution, as described in Article VI. Although Hamilton argues that the judiciary is in “continual jeopardy of being overpowered, awed, or influenced” by the other two branches of government, with judicial review the Supreme Court can decide if a treaty violates the provisions of existing law or…

    • 1410 Words
    • 6 Pages
    Decent Essays
  • Decent Essays

    Law and Morality: Dworkin disagrees with Hart’s separation of laws and morality, but he says that following rules is an important principle itself and is backed by an institutional right to have one’s case decided by a court acting on established rules. • This means that it is illegitimate for judges to rely on their own subjective preferences or moral views or advance their own idea of the social good. • Instead they must rely on the background moral principles that are already embedded in the full set of legal materials to hand. Right Answer Thesis: Dworkin also maintains that there is a ‘right answer’ for every hard case, even when there are no rules to cover it. He says that the right answer is the only answer that can be reached by correct legal reasoning, which he argues consists of an analysis…

    • 1259 Words
    • 6 Pages
    Decent Essays
  • Decent Essays

    Corbett CJ held that whether an error of law was reviewable depended on whether the legislature had intended the administrator (or administrative body) to have ‘exclusive powers regarding the interpretation of the statutory provision’ in question . Corbett CJ held that this was a matter of how the statute that conferred the power was constructed . Corbett CJ suggested guidelines for how to approach this: (a) where the powers or functions in question are of a purely judicial nature, a court will be reluctant to conclude that the tribunal is intended to have exclusive jurisdiction to decide on the meaning of a statutory criterion . ‘‘Purely judicial’ cases are cases in which the tribunal is merely required to decide whether or not a person’s conduct falls within a defined and objectively ascertainable statutory criterion’ ; (b) ‘whether or not an erroneous interpretation of law renders the decision invalid depends on materiality of error’ . ‘If, for instance, the facts found by the tribunal are such as to justify the decision even on a correct interpretation of the statutory criterion, then normally there would be no ground for interference’ ; and (c) ‘where the power is of a discretionary nature, the general approach to establishing the intention of the legislature might be different’ .…

    • 1958 Words
    • 8 Pages
    Decent Essays
  • Decent Essays

    Scalia argues that the key to making a court democratic is by interpreting the Constitution according to the framers’ intent. Scalia writes, “words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible” In other words, there are only so many ways to interpret a statute without going beyond what the legislature intended. In addition, Scalia addresses the concerns of critics when it comes to using ambiguous passages in the Constitution. Scalia replies by saying, “judges must do their best to figure out, first, the original meaning of laws and, second, the practical implications given new contexts for those original meanings.” To support that argument, Scalia cites the First Amendment…

    • 1449 Words
    • 6 Pages
    Decent Essays
  • Decent Essays

    In Civil law legislation is considered as the main source of law and codes are the main feature of the Civil law system. These codes differ from ordinary statutes. Civil code is written law that controls relationship between people or citizens. It is set of rules and principles that was arranged and compiled by high-level authorities. The solution of some cases is made by judges according to these codes or statutes and judge proves that decision is made according to the written law not precedents.…

    • 855 Words
    • 4 Pages
    Decent Essays
  • Decent Essays

    I Legal procedure and moral-practical discourse 1 Habermas versus Weber on legitimacy and the moral dimension of law In any legal theory the relation between law and morality is problematic. Reflecting on this link is relevant to the issue of the legitimacy of law. The ’classical’ and still predominant view on the legitimacy of law is that of Weber (1956). His concept of formal rationality of law presupposes a strict separation of law from morality. According to Weber, law derives its legitimacy not from morality, but from its formal properties.…

    • 734 Words
    • 3 Pages
    Decent Essays
  • Decent Essays

    This means that the Congress or the President should follow the constitution word for word. While the Federalist party held the ideas of general meaning. That said, the Congress or the President has the right to interpret the constitution based on significance. Over all this means that if the constitution doesn’t say it can’t do something then the Federalists believe they have a right to do it. As you can see the two parties show very different ways that they view the constitution as a whole.…

    • 411 Words
    • 2 Pages
    Decent Essays
  • Decent Essays

    According to him, where Public Administration is the systematic execution of law, constitution on the other hand, is only concerned with the functions of the government that are present to control general law. It is therefore, the clear difference between the former being particular while the latter being more general. This difference can only be comprehended with thorough study of the subject…

    • 1837 Words
    • 8 Pages
    Decent Essays
  • Decent Essays

    His dissenting opinions are astoundingly full of strict interpretations of the Constitutional text, which is how the formalist approach is meant to operate. But, we can also see how the formalist approach is compared to the idea of judicial restraint in his opinions. He calls several times for these political questions to be answered elsewhere, beyond the reach of the court. In doing so he is implying that the powers granted by the Constitution to the judicial branch shall not be overreached, and if they were to an answer political question that is precisely what they would be doing. Instead, he calls upon the court to interpret the text of the constitution strictly, in spite of the changing times which might inspire some justices of the court to do…

    • 2172 Words
    • 9 Pages
    Decent Essays