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View Full Version : Justice Scalia admits he doesn't care about intent behind laws




Agorism
11-13-2010, 02:50 PM
http://www.rawstory.com/rs/2010/11/rare-public-debate-scalia-admits-caring-intentions-laws



"I don't at all look to what I think the legislature thought," Scalia said. "I frankly don't care what the legislature thought."

Breyer responded quickly, saying, "That's the problem," which brought thunderous laughter from the crowd.

"You've got to go back to the purpose of the legislation, find out what's there," Breyer said. "That's the democratic way, cause you can then hold that legislature responsible, rather than us, who you can't control."

At the end, the two were asked what they would change about the Constitution.

"Not much," Breyer said. "It's a miracle and we see that through" our work.

Scalia called the writing of the Constitution "providential," and the birth of political science.

"There's very little that I would change," he said. "I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously."

That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.

"We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don't mess with the Constitution."

kkassam
11-13-2010, 05:20 PM
To anyone familiar with Scalia's philosophy of constitutional interpretation, this is not a surprise. He says as much in the first few pages of his book A Matter of Interpretation.

The main idea behind originalism is that the meaning of the constitution is fixed, and cannot be changed over time with societal values or the whims of judges. However, originalists disagree over what it is that fixes the meaning of the constitution. The originalism Scalia favors (and most originalist academics) is that the constitution's meaning is based on original meaning, original public understanding or original expectation instead of by the intentions of the framers. IMHO this form of originalism is much more defensible (and, in fact, correct). There was an earlier generation of originalists like Robert Bork and Raul Berger who did hewed to a more intentional originalism.

To take an example, all of you are probably familiar enough with American history to know that the Constitution's framers had radically different understandings of what the different clauses meant. This should be expected because the Constitution was forged out of debate and compromise, not a group who shared identical ideas. Some of them thought that the "necessary and proper" clause allowed a national bank, and others disagreed--so how are we to divine the "true intentions" of the framers? It is impossible. What can be done is to decide what the people who would be bound by the law understood it to mean and how they expected it to apply to them. We look at the anti-Federalist and Federalist papers together not because they demonstrate what was in the mind of all the framers, but because they give us insight into what deal the ratifying states thought they were getting into. I haven't read Tom Woods' Nullification book, but I notice in his public appearances, he puts great stock into these kind of arguments. Another problem with original intent, is that the framers could not anticipate many of the issues which would arise in later times, so their subjective intentions are impossible to know. What would they have thought on stem-cell research, or regulation of air-traffic control towers etc. In this cases the founders intentions for how the Constitution would apply cannot be dispositive, we can only go by an understanding of the meaning of the Constitution's language and a faithful application of that language to the problem at hand.

So my advice to constitutionalists is to stop sloppily conflating original meaning and original intent, these are differening theories. Because I think the latter is indefensible, I further recommend that constitutionalists give up talk of the "founders' intent" and talk instead about the "fouders' meaning", "founders' constitution" or "original constitution".

For further reading on this topic I recommend:

The Wikipedia article on originalism (http://en.wikipedia.org/wiki/Originalism)

Paul Brest: "The Misconceived Quest for the Original Understanding"

(the first few pages of) Lawrence Solum: "A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130665)"

Keith Whittington: "The New Originalism (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=557924)"

Jeffrey Goldsworthy: Originalism in Constitutional Interpretation (http://pandora.nla.gov.au/nph-arch/2000/Z2000-Oct-26/http://law.anu.edu.au/publications/flr/vol25no1/golds.htm)

tpreitzel
11-13-2010, 05:32 PM
Basically semantics ... Intent should never be separated from original context. ;)

Agorism
11-13-2010, 05:35 PM
Basically semantics ... Intent should never be separated from original context. ;)

Did he say that?

tpreitzel
11-13-2010, 05:39 PM
Did he say that?

Yes, by implication through referencing the 17th amendment. In fact, intent can never be accurately separated from original context without some perversion of original intent.

Agorism
11-13-2010, 05:49 PM
"I don't at all look to what I think the legislature thought," Scalia said. "I frankly don't care what the legislature thought."

Breyer responded quickly, saying, "That's the problem," which brought thunderous laughter from the crowd.

"You've got to go back to the purpose of the legislation, find out what's there," Breyer said. "That's the democratic way, cause you can then hold that legislature responsible, rather than us, who you can't control."

Perhaps he does care about context just not intent.

tpreitzel
11-13-2010, 05:51 PM
Perhaps he does care about context just not intent.

Both ... since intent can NOT be separated from context without some perversion in meaning. ;)

Agorism
11-13-2010, 06:04 PM
Both ... since intent can NOT be separated from context without some perversion in meaning. ;)

He says he doesn't care about intent though so maybe he's separating.

low preference guy
11-13-2010, 06:05 PM
He says he doesn't care about intent though so maybe he's separating.

he cares about meaning in the mind of the general public at the time it was written. intent of course shouldn't matter. intent is hard to determine. the intent could be to mislead the general public into accepting something that judges would interpret as something different from what "the public" accepted.

tpreitzel
11-13-2010, 06:14 PM
He says he doesn't care about intent though so maybe he's separating.

Scalia is simply taking the safe route by focusing on context. Intention is properly derived from context and can NOT be separated from that context without perverting meaning. Scalia is rightfully concerned that intention might be separated from it's context, thereby perverting meaning. I can understand his position as the original intent of the founders was obviously perverted in passing the 17th amendment by ignoring the original context.

Agorism
11-13-2010, 06:18 PM
Scalia is simply taking the safe route by focusing on context. Intention is derived from context and can NOT be separated from that context without perverting meaning. Scalia is rightfully concerned that intention might be separated from it's context, thereby perverting meaning. I can understand his position as the original intent of the founders was obviously perverted in passing the 17th amendment.

That's not what he said though. He says he doesn't give a damn about intent.

He may care about context who knows.

tpreitzel
11-13-2010, 06:21 PM
That's not what he said though. He says he doesn't give a damn about intent.

He may care about context who knows.

We'll just have to agree to disagree what Scalia meant by his remarks, then. ;)