WWW.THESIS.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Thesis, documentation, books
 
<< HOME
CONTACTS



Pages:     | 1 |   ...   | 5 | 6 ||

«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»

-- [ Page 7 ] --

I do not suggest, mind you, that originalists always agree upon their answer. There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Often, indeed I dare say usually, that is easy to discern and simple to apply. Sometimes (though not very often) there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment guarantee of “the freedom of speech” apply to new technologies that did not exist when the guarantee was created to sound trucks, or to government-licensed over-the-air television?

In such new fields the Court must follow the trajectory of the First Common-Law Courts in a Civil-Law System 119 [SCALIA] Amendment, so to speak, to determine what it requires-and assuredly that enterprise is not entirely cut-and-dried, but requires the exercise of judgment.

But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them. The Confrontation Clause, for example, requires confrontation. For the evolutionist, however, every question is an open question, every day a new day. No fewer than three of the Justices with whom I have served have maintained that the death penalty is unconstitutional, even though its use is explicitly contemplated in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments says that no person shall be deprived of life without due process of law; and the Grand Jury Clause of the Fifth Amendment says that no person shall be held to answer for a capital crime without grand jury indictment. No matter. Under The Living Constitution the death penalty may have become unconstitutional. And it is up to each Justice to decide for himself (under no standard I can discern) when that occurs.

In the last analysis, however, it probably does not matter what principle, among the innumerable possibilities, the evolutionist proposes to determine in what direction The Living Constitution will grow. For unless the evolutionary dogma is kept a closely held secret among us judges and law professors, it will lead to the result that the Constitution evolves the way the majority wishes. The people will be willing to leave interpretation of the Constitution to a committee of nine lawyers so long as the people believe that it is (like the interpretation of a statute) lawyers’ work -requiring a close examination of text, history of the text, traditional understanding of the text, judicial precedent, etc. But if the people come The Tanner Lectures on Human Values to believe that the Constitution is not a text like other texs; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the “evolving standards of decency that mark the progress of a maturing society,” well then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the Constitution ought to be.

It seems to me that that is where we are heading, or perhaps even where we have arrived. Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot, but permitted distinctions on the basis not only of age, but of property and of sex. W h o can doubt that, if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the chosen instrumentality of change? The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.

Common-Law Courts in a Civil-Law System [SCALIA] 121 As I said at the outset of these lectures, the interpretation and application of democratically adopted texts comprises virtually all the work of federal judges, and the vast majority of the work of state judges, in New Jersey and elsewhere. I have tried to explain why, in my view, we common lawyers come to the bench ill prepared for that task -indeed, even ill disposed towards that task.

I have discussed a few principles of statutory interpretation that seem to me the most basic or the most currently in need of emphasis. That part was principally of interest to the lawyers among you. And finally, I have discussed the major issue of textual interpretation posed by that peculiar type of text known as a constitution. These last remarks were not distinctively lawyers’ or judges’ business, but the business of every intelligent citizen; for as I have explained, if the people misunderstand the nature of the Constitution, and the role of the courts in its enforcement, the enterprise cannot succeed.



Pages:     | 1 |   ...   | 5 | 6 ||


Similar works:

«A Public Policy PrAc tice Note Minimum Value and Actuarial Value Determinations Under the Affordable Care Act April 2014 American Academy of Actuaries MV/AV Practice Note Work Group A PUBLIC POLICY PRACTICE NOTE Minimum Value and Actuarial Value Determinations Under the Affordable Care Act April 2014 Developed by the MV/AV Practice Note Work Group of the American Academy of Actuaries The American Academy of Actuaries is an 18,000-member professional association whose mission is to serve the...»

«Outsourcing Criminal Deportees Eleanor Marie Lawrence Brown† The cat is chasing its tail. They deport criminals to us and we inevitably export criminals right back to them. Senator K.D. Knight1 INTRODUCTION Source-labor countries—states that “export” migrants—are virtually invisible in immigration law scholarship. Notwithstanding the growing recognition that ever more people live transnational lives,2 the dominant conceptualization of immigration law and policy in the United States...»

«PO352701: TIPV Syllabus 1 Terrorism, Insurgency and Political Violence PO352701 Summer 2014 Department of Political Science Tue, Thu 6:00-9:15pm Room Campion 300 Boston College Professor Peter Krause Office: 229 McGuinn Hall Phone: 617-552-0759 Email: peter.krause.2@bc.edu (please include PO352701 in subject line of email) Course Description Terrorism and insurgency dominate the headlines today, but how much do we really know about these forms of political violence? Are they inventions from...»

«Kimberly A. Nicholas Lund University Centre for Sustainability Studies, PO Box 170, SE 221 00, Lund, Sweden kimberly.nicholas.academic@gmail.com Mobile: (+46) 733 223497 kimnicholas.com @KA_Nicholas Professional Interests Advancing scientific and policy solutions for global sustainability, particularly focused on food systems under climate change; understanding interactions between human and environmental systems; teaching and mentoring early-career scientists; increasing science impact through...»

«HANDBOOK for CATHOLIC SCHOOLS Diocese of Owensboro 600 Locust St., Owensboro, KY 42301-2130 Revised June, 2010 TABLE OF CONTENTS Philosophy Mission Goals Equal Opportunity Employer/Non-Discrimination Policy Code of Ethics for Catholic School Educators Policy Review Process Diocesan Sexual Abuse Policy Copy of Handbook for Catholic Schools I. Administrative Personnel II. Instructional Personnel III. Personnel Benefits and Legal Rights IV. Pupil Personnel V. General Administrative Procedures VI....»

«Open Research Online The Open University’s repository of research publications and other research outputs Challenging boundaries to ’employability’: women apprentices in a non-traditional occupation Journal Article How to cite: Andrew, Alison (2009). Challenging boundaries to ’employability’: women apprentices in a non-traditional occupation. Social Policy and Society, 8(3) pp. 347–359. For guidance on citations see FAQs. c 2009 Cambridge University Press Version: Accepted...»

«MATTHEW DESMOND Department of Sociology Harvard University William James Hall, 33 Kirkland Street Cambridge, MA 01238 Phone: 617-384-9011 Fax: 617-485-2645 Email: mdesmond@fas.harvard.edu Academic Appointments Assistant Professor of Sociology and Social Studies, Harvard University, 2012 – Steering Committee, Multidisciplinary Program on Inequality and Social Policy, Kennedy School Steering Committee, Qualitative Social Sciences at Harvard Junior Fellow, Society of Fellows, Harvard University,...»

«Report of the American Academy of Actuaries’ Annuity Reserves Work Group Presented to the National Association of Insurance Commissioners’ Life Actuarial Task Force March 1, 2012, Life Actuarial Task Force Meeting The American Academy of Actuaries is a 17,000-member professional association whose mission is to serve the public and the U.S. actuarial profession. The Academy assists public policymakers on all levels by providing leadership, objective expertise, and actuarial advice on risk...»

«Free to Move? The Law and Politics of Internal Migration in Twentieth-Century America The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters. Minoff, Elisa Martia Alvarez. 2013. Free to Move? The Law and Citation Politics of Internal Migration in Twentieth-Century America. Doctoral dissertation, Harvard University. July 25, 2016 12:08:37 AM EDT Accessed http://nrs.harvard.edu/urn-3:HUL.InstRepos:11095954 Citable Link This...»

«Federal Reserve Policy and the Housing Bubble Lawrence H. White The U.S. housing bubble and the fallout from its bursting are not the results of a laissez-faire monetary and financial system. They happened in an unanchored government fiat monetary system with a restricted financial system. What Happened and Why? Our current financial turmoil began with unusual monetary policy moves by the Federal Reserve System and novel federal regulatory interventions. These poorly chosen public policies...»

«Corruption, the Inequality Trap, and Trust in Government* Eric M. Uslaner Department of Government and Politics University of Maryland–College Park College Park, MD 20742 Senior Research Fellow, Center for American Law and Political Science Southwest University of Political Science and Law Chongqing, China euslaner@gvpt.umd.edu Prepared for presentation at the Joint Sessions of Workshops, European Consortium for Political Research, Munster, Germany, March, 2010, Workshop on “ The...»

«Basic Income and Feminism: in terms of “the gender division of labor” Kaori Katada1 Assistant Professor Saitama Prefectural University (Japan) 1. Introduction In recent years, various life situations incompatible with a welfare state have surfaced, such as homelessness, unemployment of youth, poor single mother households, drawing attention to the reality of social exclusion. In this context, various inclusion strategies to counteract exclusion have been sought as alternatives to the...»





 
<<  HOME   |    CONTACTS
2016 www.thesis.xlibx.info - Thesis, documentation, books

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.