Ella: Dworkin on Semantic Textualism and Scalia's View of The Sixth Amendment

By

On page 43, Scalia brings up his disagreement with the Court’s decision to allow a child victim of sexual abuse to testify with on the prosecutor and defense counsel present. Scalia dissented this decision because it violated the Sixth Amendment which holds the right for the accused to be confronted with the witness against him. 


I agree that the Court’s decision here was inconsistent with the meaning of the words of the text. However, Scalia’s basis for this argument ends up being quite weak. He goes on to say that “one of the major purposes of that provision was: to induce precisely that pressure upon the witness” (44), so as to put pressure on the accuser to not lie. He drives his point home by saying that “the only significant that have changed, I think, are the society’s sensitivity to so-called psychic trauma.” Here is where my issue with Scalia’s argument lies—it is not necessarily a subjective social sensitivity that prompted the Court’s decision, but rather, new scientific evidence and understandings about the effects of child abuse, that may have coincidentally changed social sensitivities as well. 


What I am saying is in essence an agreement with Dworkin. Textualists should be afforded the ability to change their interpretations of the text to go beyond how the framers understood it, so long as they are semantically consistent. For example, as Dworkin points out on page 120, although the framers may not have thought capital punishment to be cruel and unusual, it is now, by modern standards, considered cruel and statistically unusual. It is not that the method of interpretation of the words has changed, but rather that the evidence and information with which the words are interpreted has changed. The definition of cruel and unusual has not changed, only what is understood to be considered cruel and unusual in modern society. Much like how the definition of the Fourteenth Amendment was not changed due to a new interpretation in Brown v. Board. Rather, the information used to interpret that statute (which demonstrated that separate is in fact not equal) was more expansive. 


My argument against Scalia’s dissent of the child abuse case differs from Dworkin’s points, however, because I am pointing out how Scalia’s dissent is inconsistent with his interpretation of the Sixth amendment rather than the words of the Sixth Amendment itself (this is in itself another issue, because Scalia is hypocritically invoking legislative intent to explain an amendment, but that is not the point of this blog post). I concede that the Court’s decision went against the words of the Sixth Amendment, but it did not go against the intention of the Sixth Amendment. With the information we have on abuse now, it can be understood that putting an abused child before their abuser (who likely manipulated them) may make them more inclined to lie on the abuser’s behalf. Therefore, forcing a child to testify in front of their abuser would not ensure the intent of the Sixth Amendment like Scalia claims. This is a conclusion that has not changed the meaning of the Sixth Amendment’s purpose. Rather, it is a change in the understanding of how to implement the Sixth Amendment’s purpose.

Comments

Post a Comment

Popular posts from this blog

Livia: Táíwò and Economic Success in the Global South

By
  Reconsidering Reparations by Professor Olúfẹ́mi O. Táíwò illuminates the large extent to which racism and colonialism played in creating the current global economic structure, in which the global north dominates the global south. Additionally, this book highlights how current policies implemented by global institutions such as the IMF and the World Bank have further strengthened and reaffirmed this positioning. Taking into account this global historical perspective, we can better understand how “consequences flow from some other parts of the world to other parts, often across national borders, and in ways that complicate geographically and politically narrow ways of thinking about reparations” (24). Thus, some sort of international obligation of social justice must be exist. Táíwò’s emphasis on the role that slavery and colonialism played in establishing the current economic order makes me think about the signal which this sends to the Global South in the development of their p...
Read more

Carlos: Response to Henry's Conclusion

By
I've spent way too long trying to argue against Henry's point because it just seems wrong to conclude with "there is no current social framework by which we might call their lasting effects socially unjust–at least under the political conception of justice". Yet, the more I thought about it, the more I felt I had to agree with Henry's argument regardless of how strange it felt to do so. Still, I did have a few ideas as I was thinking of how to refute Henry's conclusion: -------------------------------------------- 1) With the hypothetical situation Henry provides, if we were to fully extend its logic to our current world, I think Prof. Hurley would have also created a division between the A and B group that would have maintained even into Tuesday. I think were that division were to have taken place, even after Prof. Hurley disbanded the government, the division would have remained and the hierarchy of power would continue into the rest of the week. It seems fa...
Read more

Smith, Locke, Harris, and Justice

By
 On page 79, Smith writes, "the violation of justice is injury: it does real and positive hurt to some particular persons," and thus it is a virtue that, unlike beneficence, warrants resentment if we fail to fulfill it. Upon reading this, I immediately thought, well how are you defining justice?  It became very clear in the following pages that Smith's conception of justice is nearly identical to Locke's Law of Nature. On page 80, he writes, "Among equals each individual is naturally, and antecedent to the institution of civil government , regarded as having a right both to defend himself from injuries, and to exact a certain degree of punishment for those which have been done to them." He continues to say that justice is only those transgressions which spectators would have the right to, and would be compelled to, punish whoever commits them. After this, he explains that no one has a right to advance their own happiness at the expense of someone else's...
Read more