Noting Justice Scalia’s work on Constitutional interpretation, two competing approaches will be discussed. According to Justice Scalia, there are four approaches to Constitutional interpretation: Textualism, Strict Constructivism, Legislative intent, and Living Constitution. However, the most prominent approaches to Statutory and Constitutional interpretation are textualism and living Constitution. Justice Scalia makes a case for textualism. He explains in his essay “A Matter of Interpretation,” that textualism is the proper approach to interpreting the Constitution. Justice Scalia adheres to the principle of reading the letter of the law rather than the intent of the law (Scalia 23). For many years the Supreme Court of United States has practiced
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Customary law is a system based on the interpretation of a court case, based on prior cases. This approach is called stare decisis (Scalia 4) which is deciding a case based on precedent. The practice of stare decisis is highly criticized by Scalia. Justice Scalia explains that the system of case precedent or common law review, has two main problems. The first one cited by Justice Scalia is that, common law review applied the law to the fact of a case. This is a problem because of the different nuances of every case presented before the judiciary. Scalia’s second objection to common law review is that it creates law (Scalia 5-6). This principle of stare decisis is flawed according to Scalia, because it sets the standard that one case will determine the next. Scalia uses the example of a painter who is contracted to paint his house. The painter, however, paints the house the wrong color. After that, the patron’s neighbor decides to sue in court for breach of contract. That case would be dismissed for “privity of contract” (Scalia 8), because the neighbor doesn’t have a claim to the case. As such, the principle of legal precedent can’t be applied to all …show more content…
He defines textualism as interpreting the Constitution based on what the statute means, not what it meant. He makes the distinction between a different approach to the Constitution: strict constructivism. Unlike textualism, strict constructivism reads a text strictly and not leniently. As an example of strict constructivism, Justice Scalia uses the case of Smith v. the United State (Scalia 23-24). In the Smith case the defendant purchased a quantity of cocaine, in exchange for a firearm. Although perhaps irrelevant, the gun was unloaded. However, the text of the statute provided an enhancement to the charges brought against the defendant. Said enhancement read “uses a gun” in the drug trafficking related crimes. Scalia claims that the court used a strict construction approach because the text “uses a gun,” was very vague. Conversely, textualism, according to Scalia, is not a literalist, neither a “nihilist” (Scalia 24). Other proponent of textualism, like Justice Clarence Thomas, refer to Legal Realism (O’Brien 219). Justice Thomas explains the same principles as Justice Scalia in reference to textualism. Thomas argues that text of the law cannot be altered to please people individually. Thomas, an African American, explains that sometimes he meets with young African American youth, and explains to them that the law should apply the same to everyone. He quotes the example of a referee of a
Customary law is a system based on the interpretation of a court case, based on prior cases. This approach is called stare decisis (Scalia 4) which is deciding a case based on precedent. The practice of stare decisis is highly criticized by Scalia. Justice Scalia explains that the system of case precedent or common law review, has two main problems. The first one cited by Justice Scalia is that, common law review applied the law to the fact of a case. This is a problem because of the different nuances of every case presented before the judiciary. Scalia’s second objection to common law review is that it creates law (Scalia 5-6). This principle of stare decisis is flawed according to Scalia, because it sets the standard that one case will determine the next. Scalia uses the example of a painter who is contracted to paint his house. The painter, however, paints the house the wrong color. After that, the patron’s neighbor decides to sue in court for breach of contract. That case would be dismissed for “privity of contract” (Scalia 8), because the neighbor doesn’t have a claim to the case. As such, the principle of legal precedent can’t be applied to all …show more content…
He defines textualism as interpreting the Constitution based on what the statute means, not what it meant. He makes the distinction between a different approach to the Constitution: strict constructivism. Unlike textualism, strict constructivism reads a text strictly and not leniently. As an example of strict constructivism, Justice Scalia uses the case of Smith v. the United State (Scalia 23-24). In the Smith case the defendant purchased a quantity of cocaine, in exchange for a firearm. Although perhaps irrelevant, the gun was unloaded. However, the text of the statute provided an enhancement to the charges brought against the defendant. Said enhancement read “uses a gun” in the drug trafficking related crimes. Scalia claims that the court used a strict construction approach because the text “uses a gun,” was very vague. Conversely, textualism, according to Scalia, is not a literalist, neither a “nihilist” (Scalia 24). Other proponent of textualism, like Justice Clarence Thomas, refer to Legal Realism (O’Brien 219). Justice Thomas explains the same principles as Justice Scalia in reference to textualism. Thomas argues that text of the law cannot be altered to please people individually. Thomas, an African American, explains that sometimes he meets with young African American youth, and explains to them that the law should apply the same to everyone. He quotes the example of a referee of a