Hmm, maybe I'm just confused. My understanding of textualism v. constructionism is that textualists look to the general topics addressed by the text as well as the motivations behind the text, whereas constructionists look primarily at the actualy wording of a law and secondarily at the debate process resulting in the wording-- nothing else.

For example, textualists could support an implied right to privacy in the Constitution, whereas strict constructionists could not. Textualists could read the various measures in the Constitution aimed at keeping government out of people's personal lives so long as they aren't harming anyone, and conclude that because privacy is a theme of these measures, at least some degree of privacy was assumed to be a Constitutional right. In contrast, a strict constructionist might argue that the text does not specifically grant a blanket right to privacy, so as a result, the Constitution contains an exhaustive list of all the types of activities that must be private, such that all else is public.

As a result of my understanding (or misunderstanding), I would think a textualist could sign on to the major argument supporting the Roe v. Wade decision (a Constitutional right to privacy), whereas a strict constructionist could not. As Roe v. Wade is rarely accused of being a conservative activist opinion, where am I going wrong when I assert that textualism can be used to support any political ideology instead of just the conservatism that Cube Jockey suggests?

Jack - here is a post by hayleyanne earlier in the thread where she gives a good definition of textualism.


I have bolded the important portions of this. A Textualist considers the text, but as the definition here states their interpretation is also based upon historical precedent (case law) and evolutionary interpretation (probably more commonly known as judicial activism).

Now, I don't think that being a textualist necessarily means you have to believe in conservative political ideology. My point was that the phrases "judicial activist" and "living constitution" are quickly becoming dirty words thanks to right wing politicians and right wing pundits. Any time a decision is handed down they disagree with, they immediately scream "judicial activist!" (see recent examples in the CA gay marriage case and the Schiavo case where the judges actually happened to be Republican conservatives).

What Scalia is doing by bringing this "textualist" phrase into the picture is allowing him to separate his type of activism from the "judicial activism" with bad connotations of his liberal counterparts. The whole thing is a clever attempt to reframe what conservative judges are doing as "right" and what liberal judges are doing as "wrong" when both types of judges are still being "activists" by using evolutionary interpretation.

If this were a debate between strict constructionists and "judicial activists" then we might have a debate. But as it stands we are debating two flavors of the exact same thing.

There's way too much here for me to address all of it, but I'll do what I can.

(1) Is Textualism the proper mode of judicial interpretation/review? Why or why not?

Yes. I'm with Scalia all the way on this. For the critically important reason that otherwise the Constitution cannot do what it was designed to do, to be the chains that bind down Leviathan. When dealing with a chained monster, what use are elastic chains? Surely someone will be eaten.

(2) Is the “Living Constitution” approach the proper mode of judicial interpretation/review? Why or why not?

It couldn't possibly be. That approach means it means not very much specifically except for the policy preferences of the particular judge. That gives judges license to "legislate from the bench" and, as has in fact happened under this approach, the powers of government have grown all out of control. Since the primary purpose of the Constitution is to limit the powers of government, this approach has therefore failed. Or to look at another way, it has succeeded at its purpose, which was to subvert the Constitution.



That doesn't even make sense, and is inconsistent with what Scalia himself said elsewhere. Either Scalia misspoke there, or he was misquoted. What he meant to say, either way, must have been this:


Now, I did not look it up, and it wouldn't help anyway if what happened was that he misspoke but was quoted accurately, but if I'm right, that resolves Ultimatejoe's misgivings about the quote, nicht wahr?



You are of course correct that there is no constitutional authority to ban marijuana, just as there was none to ban alcohol, hence the Prohibition amendment. If the case was as you say, then yes, Scalia was inconsistent. But that doesn't mean the standard he preaches is wrong, even if he doesn't always follow it. It just means we look for judges who will more consistently apply it.

That is not at all what Scalia is suggesting Iz. Scalia is NOT he a strict constructionist and he has even denied that when asked. In fact I think hayleyanne quoted him as saying that in this thread. He calls himself a "textualist" and there is absolutely no different between an "activist judge" there because it still allows for evolutionary interpretation of the Constitution. He just interprets things based on his conservative personal politics and avoids using the term "judicial activist" by coining a new phrase.

CJ, I don't see any inconsistency between what I wrote and what Scalia says his approach is (though if Rancid Uncle is right, he's sometimes inconsistent).

The way that you get strong constitutional chains to hold down the monster is by doing exactly what I understand Scalia to advocate: By reading the text fairly and reasonably, neither adding nor taking away any meaning from the original, and if it isn't entirely clear just from the words as they were used at the time it was written, to refer back to the original intent of the authors. Am I not understanding him correctly? Or did I just describe a "strict constructionist"? Either way, that's how I believe in doing it.

The other term he uses to refer to his judicial philosophy is "Originalist" and I prefer that one.

You could be right of course that he is in fact a "conservative activist" but if so he manages to be one while generally following the original intent of the authors more closely than any other justice with the possible exception of Thomas. Of course it could well be that none of them follow it as closely as I would like.

Somehow I have the feeling that if I were nominated for the SCOTUS, even if my credentials were impeccable, the Senate Dems would filibuster me. And somehow, I think you would too if you were one of them.

Iz, no one would follow the constitution as much as you would like except for a strict constructionist, you are a hard core libertarian - and that is ok.

However, to suggest that Scalia follows the constitution more closely because he engages in conservative activism is not a very good argument. All of the judges we currently have in the SCOTUS practice evolutionary interpretation. In fact, almost every major decision we have on record has a component of evolutionary interpretation to it. Scalia's "words" are nothing because he isn't saying anything. He is making up some arbitrary word for himself without calling himself a strict constructionist.

Well, since I am a libertarian of the right, I would certainly prefer conservative judicial activism to liberal activism if those are the only options, but i'm not going to be happy with the situation.

I 'spose you're right, CJ, in which case my two favorite Justices, Scalia and Thomas, aren't the two best, only the two least worst. How depressing.

I guess I'll have to read Scalia's book for myself, but I'm not looking forward to it as much as I was.

Hi Izdaari! You should still be looking forward to reading Scalia's book. It is outstanding and a very quick read. It sets out his views on constitutional interpretation; opponents and supporters respond; and then he provides a rebuttal.

CJ is not correct when he labels Scalia a conservative activist. Thomas and Rehnquist may be-- BUT NOT Scalia.

Also, you really should check out www.cspan.org They have one of Scalia's speeches (to an unfriendly audience!) on video. It is a 57 minute speech with Q and A that I have watched twice already. He does a great job of boiling down some of his points in the speech. He also provides examples of BOTH liberal and conservative activist decisions (coming down within a few days of each other) and does so in a very entertaining way. He says something along the lines of : "The Court held X and the liberals gnashed their teeth. The Court held Y and the conservatives gnashed their teeth. Me, I say a pox on both of them"

And BTW-- you were absolutely correct in questioning that direct quote. It should have included a "not" in the first part. If you pulled that off something I wrote, I apoligize-- I must have been typing quickly.

I am at a loss as to how you can say that when you cited your definition of "textualism" hayleyanne and it includes evolutionary interpretation. Whether you consider it low on the totem pole or not is irrelevant.

Scalia is making up words to describe himself and that is really all there is to it.

CJ-- I cited those four factors to balance, yes. But that was coming from a German professor of comparative law. I do happen to agree that we need to integrate and balance the "evolutinary" aspect. But in that regard, I think I may differ from Scalia. I am not sure however, that we do not (to borrow from another thread here) start down the slippery slope.

(1) Is Textualism the proper mode of judicial interpretation/review? Why or why not?
(2) Is the “Living Constitution” approach the proper mode of judicial interpretation/review? Why or why not?

Let's say that textualism is A reasonable way to interpret old, legal documents. Like every other approach, textualism has its limits and its absurdities, right? If one way worked in regular, predictable fashion, there would be just one way, just as it is mathematics.

Let's say that a Living Document approach is ANOTHER reasonable to way to interpret old, yet active, legal documents. It must have its limits and absurdities, or this topic would be no more interesting than the never-ending question often known as "what is the square root of 2?"

Now that some have elevated Antonin Scaia to a place with the gods on Mt. Olympus, (or maybe because of the explosive nature of his dissents and opinions, it should be Mt. St. Helens) we need to resurrect a “old devil” to thwart the “ new god.”

My candidate is the late Justice William O. Douglas, whom many would consider an activist and certainly a practitioner of the living constitution.

I just started reading Bruce Allen Murphy’s Wild Bill: The Legend and Life of William O. Douglas America’s Most Controversial Supreme Court Justice.

According to Murphy:



At least Douglas attempted to fast forward enlightenment rather than place himself, as Scalia has done, as a cork in the canal of progress.

For his efforts, Douglas became the object of another court tampering scheme. After losing Congressional support (even from some Republicans) for Supreme Court nominee, Clement Haynesworth, Nixon unsuccessfully tried to start impeachment proceedings against Douglas. Such, in my opinion, was equally as repulsive as Roosevelt’s attempt to pack the court approximately three decades earlier.

According to Murphy:



What poetic justice, that Nixon, who wanted Douglas impeached, resigned under pressure and, in my opinion, would have been impeached and convicted had he not resigned.

Murphy’s book should be interesting. It seems to portray a man cut from entirely different cloth than Scalia, one unconcerned with “textualism” or “originalism.”

I'll let you know more about the book when I finish reading it.