(Josh) On Scalia / Dworkin

By Anonymous

The argument that convinces me most against Scalia's understanding of originalism is found in a quote Scalia cites from McCulloch v. Maryland to prove his own argument: 

 "A constitution, to contain an accurate detail... would partake of the prolixity of a legal code.... . It's nature, therefore, requires, that only its great outlines should be marked"

Knowing that the Constitution is much too short to be a legal code, its statutes should not be viewed as legal code. They should not be viewed as Scalia thinks statutes should be viewed. Rather, like Dworkin argues, they should be viewed as statements of principle. Scalia seems to want to take something extremely concrete out of a non-legal code. Not acknowledging that the constitution is not a normal legal code statute leads to judges acting like it is, and not admitting the necessary need by judges to extract from the constitution guiding principles to apply to modern, complex problems.

What I find problematic about Scalia's form of originalism is that he cares about the original meaning but acknowledges that the original meaning will not hold up perfectly as times change. When these instances happen, he remarks, judges should use their best judgement to apply the original meaning of the text to modern times. This seems hypocritical. How could there be a method of constitutional interpretation that is against extracting meaning from statutes in some instances (ex: against applying the right to bear arms to what bearing arms means in modern times), but is willing to extract meaning in other instances (ex: using the free speech amendment to apply to complex, modern cases of speech that were not predicted by the ratifiers)? 

I do find a lot of value in Scalia's argument. Questioning intent is worthy because intent can be used as a guise for opinion. But, I think that extraction of principles from the text or somewhere else will happen regardless of how a judge interprets the constitution because the text is too small to provide answers to every case. Thus, judge's may as well admit, like Dworkin says, that they are constructing. 




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