Acting Citizen: Hope eternally springs

By James Knudsen

2020, or is it Twenty-twenty? 20/20? Anyway, it’s been an absolute excrement-extravaganza. However, contrarian that I am, I would rather shine a light than hurl curses into the darkness. For all the tragedy, suffering, and pandering political advertising this year has brought, I want to believe that some positive things have emerged.
    I still can’t get my brain to work the way the brain of someone who still supports President Trump works, so the silver linings I identify apply to those on the left side of the political spectrum. And, given that these apply, for the most part, to people who identify as Democrats and, more specifically, the Democratic Party, I must acknowledge that any lessons learned will likely be forgotten after a few campaign cycles, and the nation will be trying, desperately, to vote President Glenn Beck out of office. Still, hope springs eternal—

Still under assault 50 years later

Tomorrow will be the 50th anniversary of the assassination of Dr. Martin Luther King Jr.

By Moristotle

In “What the Supreme Court Doesn’t Get About Racism” [NY Times, April 2], the Editorial Board of the NY Times reminds us that Dr. King

Movie Review: The Most Hated Woman in America

Who is Madalyn Murray O’Hair

By Moristotle

Netflix’s latest streaming release, The Most Hated Woman in America, doesn’t flatter Madalyn Murray O’Hair, nor does it flatter the religious people who hated her for “standing up” (as she put it) for the First Amendment of the Constitution’s guarantee of religious freedom, including freedom not only to believe, but also not to believe. Her lawsuit, Murray v. Curlett, led to the landmark 1963 Supreme Court ruling that ended official Bible-reading in American public schools.

Reconsidering Antonin Scalia’s view of “original intent”

Judge Richard Posner at Harvard University
By chensiyuan - chensiyuan, GFDL

From recent correspondence

Edited by Morris Dean

The death of Justice Antonin Scalia occasions our reconsidering his view of the “original intent” of the authors of the U.S. Constitution and his insistence on textually clear interpretations of statutes rather than on legislative intent.
    Scalia’s ideas have served as presumably objective methods in turning back previous, more liberal judgments in favor of conservative notions.
    Richard Posner shredded Scalia’s view of “original intent” in The New Republic (August 24, 2012) in a scathing review of one of Scalia’s then recent books. Judge Posner’s review, “The Incoherence of Antonin Scalia,” was a wonderful refutation by one of the most coherent of American jurists. Posner’s review opens thus:

Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.
    The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”
    Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

    We would love to quote the whole thing, but fairness to the original publisher prevents us. And you can read on with a single click and a bit of scrolling.

Copyright © 2016 by Morris Dean

Assessments of Antonin Scalia’s Court

Ronald Dworkin, by David Shankbone
Own work., CC BY-SA 3.0

From recent correspondence

Edited by Morris Dean

[Yesterday’s article by James T. Carney, “Justice Antonin Scalia: A judicial activist?,” provoked several communications from our readers. We share them here.]

Ronald Dworkin (1931-2013), who was perhaps the most cited, brilliant legal scholar in both the US and Britain, preferred a moral interpretation of the constitution over the so-called “original intent” interpretation by the late Justice Antonin Scalia. Dworkin wrote many enlightening articles for The New York Review of Books.

Justice Antonin Scalia

A judicial activist?

By James T. Carney

The essence of judicial conservatism is a recognition of the truth of Churchill’s aphorism: “Democracy is the worst form of government – except for any other which has been tried from time to time.” The U.S. Constitution is the foundation upon which our democracy rests. In interpreting the Constitution, one should discern and implement the intent of the founding fathers and one should apply the doctrine of stare decisis (i.e., once decided, always decided) – except under two circumstances.