Antonin Scalia on Principles & Values
Supreme Court Justice (nominated by Pres. Reagan 1986)
The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.
The day after the First Amendment was proposed, the same Congress that had opposed it requested the President to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God."
Justice Scalia summarizes the common-law tradition this way: "This system of making law by judicial opinion: I am content to leave the process of developing the common law where it is."
But as the years went away, legislatures passed laws covering a wide (and ever-growing) range of subjects. Should the basic mission of statutory interpretation be to determine the legislature's intent? Or something else?
Justice Scalia has a clear answer. It is, in a word, "textualism." For Scalia, textualism is not to be confused with what is frequently called strict construction.
Justice Scalia shies away from this description: "I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist." He elaborates: "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably."
How does textualism work? "In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words an expansive rather than narrow interpretation." For an example, Scalia writes: "Hand-written letters are neither speech nor press. Yet surely they cannot be censored. Speech and press stand as a sort of synecdoche for the whole. That is not strict construction, but it is reasonable construction."
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