Judicial Philosophy of Judge Scalia

Introduction

The interpretation of the law is one of the traditional problems of legal science. Studying the concept of a “living constitution” in the United States makes it possible to get in-depth insight into the essence of the constitutional system of the country, to understand the causes and sources of its evolutionary development, taking into account the fact that the US Constitution of 1787 is the first State Act in the world. Each of the concepts of constitutional interpretation in this country is based on a certain type of legal thinking.

In its turn, legal thinking is a solution of the main issue of the philosophy of law, i.e., about the relationship between law and government, law and rule, law and power. In other words, Living Constitution is the theory prevailing in American constitutionalism, which argues that the content of the constitution is dynamic and developed under the influence of social change. The idea of a “living constitution” is that the current state of society should be taken into account when interpreting key constitutional phrases created in the XVIII century.

Justice Antonin Scalia

The American discourse is primarily built around a debate between conservative and liberal lawyers on a number of issues, and the key one is how accurately one should interpret the US Constitution. One of the prominent figures in the conservatism of the US lawmaking was a former jurist and Justice Antonin Gregory Scalia. Being the intellectual leader of the conservative wing of the Supreme Court, he made a considerable contribution to modern American legal thought and judicial practice. The difference and interpretation of original and living Constitution can be found in his book A Matter of Interpretation: Federal Courts and the Law (1997).

Liberalism

Liberals, on the one hand, profess the concept of a “Living Constitution”, according to which the text of the Constitution is not necessary to take literally, and its interpretation may change over time, depending on the current situation.2 So, liberal lawyers are “discovering” more and more new powers every year, allegedly belonging to federal authorities and allowing them to arbitrarily interfere in the functioning of the free market and the privacy of citizens. For example, in the years of Roosevelt’s New Deal, they were ardently worthy of better application, defended by legislation that allowed, in particular, the federal authorities to forcibly destroy the “surplus” of agricultural produce grown by farmers.

Conservatism

Conservatives, on the other hand, adhere to the concept of “originalism,” the meaning of which is that the provisions of the Constitution does not change over time, and the courts, when interpreting the Constitution, should strive to reveal the meaning that the authors of the Constitution initially included in its text.[1] If society considers that a constitutional norm is outdated and does not meet modern realities, the Constitution itself contains a mechanism for amending it, through which US citizens can bring the provisions of the fundamental law of their state into conformity with the demands of the time.

Discussion

Notably, the amendment mechanism is somewhat complicated, but the founding fathers of the United States deliberately made it so that amendments to the Constitution are made only in cases when there is a consensus in the society in support of changes. They saw a guarantee of the stability of the Constitution and, accordingly, the inviolability of the freedom of American citizens.[2] Justice Scalia supported and justified originalism mainly by criticizing what he implied by “ascendant” alternative, i.e., the Living Constitution.” Justice Scalia conceded that judges should interpret policies and regulations by genuinely concentrating on the text itself. He proposed that judges more and more abandon the notion of a “living” Constitution instead of focusing on the Constitution’s original value.1

Justice Scalia never approved people’ thinking of ever-changing Constitution and continually argued with everybody who tried to prove the opposite. The former judge, being a staunch “originalist,” considered inadmissible such liberties in the handling the Constitution. He managed to ensure that the “originalist” principles were reflected in many decisions of the Supreme Court, and since the United States has the principle of judicial precedent are obliged to act following the position of the higher courts, especially the Supreme Court.

Today even very liberal judges are forced to treat the text of the Constitution with more reverence than recently.2 Among the many “iconic,” as they say, decisions of the Supreme Court, the critical decision on the sensational case of District of Columbia v. Heller was one of the viral. This solution reversed the longstanding tradition of interpreting the Second Amendment to the United States Constitution as conferring the right to bear arms only to members of an organized militia created by state governments. Due to Judge Scalia’s efforts, the Supreme Court returned the Second Amendment its original meaning, recognizing the right to bear arms for all US citizens.

Admittedly, not always the majority of colleagues took Scalia’s side when making decisions. In such cases, he often exercised his right to write a dissenting opinion. Realizing that the development of legal thought does not end with the adoption of a decision, with which he did not agree, Scalia considered it necessary to convey his position to a wide range of lawyers and, in particular, law students, many of whom will have to wear judicial gowns in the future. The dissenting opinions of Justice Scalia are fascinating reading for any lawyer or just a person interested in law. Thus Antonin Scalia argued that judges should not be lawmakers, but only diligent interpreters of laws passed by the legislative branch.

A wide array of Justice Scalia’s speeches, articles, books, and statements led to one point: accepting and sticking to the original Constitution. Scalia believed that judges who do not abide by originalism misuse the initial Constitution to justify own morals, beliefs, and attitudes. The Constitution is not a bill of rights, but the entire legal structure, which requires textualism. People who think that the Constitution would fall apart if it did not evolve with society altogether are ‘idiots’ as Justice Scalia always told.

According to his judicial philosophy, there can be no space and fundament for personal, religious or political views and beliefs.1 Scalia strongly criticized those officials and judges who preferred “living Constitution” above the original one. Admittedly, he rejected the perception of this time of Constitution saying that it is not a bottle that each generation fills up as they want.2 He further analyzed that when Americans select someone to be on the Supreme Court, they pick up somebody who can help in rewriting and rebuilding the entire Constitution in the way they want to see it referring to social currents, own principles, and so forth. It is like conducting a mini-Constitutional convention every single time when someone is appointed to the Supreme Court.

Conclusion

It becomes apparent how Justice Antonin Scalia fought against the entire American system, who promoted living Constitution. In the book A Matter of Interpretation: Federal Courts and the Law, Scalia explained the real meaning of originalism and how courts misuse their full powers choosing occurring social events and own beliefs rather than adherence to the Constitution as it was established in 1787. Therefore, Justice Scalia wrote a plethora of works revealing both Constitution, but he was the one who strongly focused on the textualism leaving out any chance of evolving system.


[1] Scalia, A Matter of Interpretation: Federal Courts and the Law, p. 15, 18-20, 76, 88-90, 145, 153.

[2] Manning, Justice Scalia and the Idea of Judicial Restraint, p. 747, 752, 766, 781.

Bibliography

Manning, John F. “Justice Scalia and the Idea of Judicial Restraint.” Michigan Law Review 115, no. 6 (2017): 746-482. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1646&context=mlr

Scalia, Antonin, and Amy Gutmann. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997.

The terms offer and acceptance. (2016, May 17). Retrieved from

[Accessed: March 19, 2024]

"The terms offer and acceptance." freeessays.club, 17 May 2016.

[Accessed: March 19, 2024]

freeessays.club (2016) The terms offer and acceptance [Online].
Available at:

[Accessed: March 19, 2024]

"The terms offer and acceptance." freeessays.club, 17 May 2016

[Accessed: March 19, 2024]

"The terms offer and acceptance." freeessays.club, 17 May 2016

[Accessed: March 19, 2024]

"The terms offer and acceptance." freeessays.club, 17 May 2016

[Accessed: March 19, 2024]

"The terms offer and acceptance." freeessays.club, 17 May 2016

[Accessed: March 19, 2024]
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