Point of Contention Between Tribe and Scalia: The Constitution's True Role in Originalism

By

During my tutorial discussion regarding statutory construction, an interesting point was raised: the validity of the use of canons in the interpretation of statutes. My concern, which was also voiced by my tutorial partner, is that Scalia points out the incompatibility between certain canons and the use of subjective legislative intent to demonstrate that such use of subjective intent is invalid. While I understand that these canons, like laws, are open to discernment, he utilizes them nonetheless, begging the question: if these canons are not promulgated and explicitly stated, why appeal to them at all? 

And I find that this concern bleeds--in a slightly differing but relevant way--into Scalia's argument about constitution interpretation. Scalia argues that, in his following of originalism, he looks for "the original meaning of the text, not what the original draftsmen intended" (38). From this, we can derive that Scalia believes that the original meaning of the text is of utmost importance in constitutional interpretation. He even argues that extending beyond the original meaning of the text could result in "change" (40) that would cause the foundation of our democracy to collapse. We can also derive that Scalia believes that because the text of the Constitution is so important, it should be the only point of reference in interpreting it. 

It is at this point in Scalia's argument that I must channel one of Tribe's primary concerns. If there is nothing in the Constitution itself that explicitly states that the Constitution's text should be the "ultimate point of reference" (77) in interpreting it, according to Scalia's line of reasoning, we would not be wrong in accepting that the Constitution should not be the ultimate point of reference. But Scalia's entire originalist argument and its applications to the plethora of constitutional amendments referenced seem to be rooted in the principle that the Constitution should be the ultimate point of reference. 

More interestingly, Scalia also argues that proponents of the Living Constitution "follow nothing at all" (44) and cannot agree "upon what is to be the guiding principle of the evolution" (45). While this aspect of Scalia's argument warrants its own discussion, I want to point out that this problem that he so avidly emphasizes seems to be present in his own philosophy. I believe he would argue that there is, in fact, a guiding principle of the originalist conception of constitutional interpretation: the Constitution. But if there is nothing within the Constitution that states that the text itself and its original meaning be the "ultimate point of reference" (77), is there truly a guiding principle for originalism? 


Comments

  1. Henry LongFebruary 2, 2023 at 9:28 AM

    This comment has been removed by the author.

    ReplyDelete
  2. Henry LongFebruary 2, 2023 at 9:29 AM

    I think that there is a difference between saying that there arises "problem of self-referential regress whenever one seeks to validate, from within any text’s four corners, a particular method of giving that text meaning" (Tribe 76) and saying that there is no guiding principle for originalism. Scalia circumvents the issue of self-referential regress by appealing to the canons of construction as a method of interpreting the Constitution. Though it may be so that no text can validate its own meaning, it does not follow that no text has meaning. As Scalia says, "Deconstruction is fun. It is also quite useless for those who want to get on with the business of living and acting in the real world" (Scalia 138).

    ReplyDelete

Post a Comment

Popular posts from this blog

Global Racial Empire vs Materlialism (marxism)

By Anonymous
In reading Taiwo's Reconsidering Reparations  I was reminded quickly of reading about materialism in Marx's The German Ideology . Marx built a framework that viewed nearly every aspect of society, from basic family dynamics to tools to language to industry as a result of humans fulfilling their material needs. Taiwo cites author Charles Mills who argued for a framework of "global white supremacy" as a political system  that results from the fact that "the world has been foundationally shaped for the past five hundred years by the gradual consolidation of global white supremacy" (25). Taiwo goes on to say that his book agrees with this theory.  I do not object the the fact that global white supremacy has affected nearly the entire world. It has been a phenomenon that has shaped the global power structure, allowed those in power to gain wealth, and subjugated millions of people.  Though, I do think an important nuance could be clarified. I notice that subjugat...
Read more

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