Scalia, Antonin (1936–) (Update)

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SCALIA, ANTONIN (1936–) (Update)

Antonin Scalia is an Associate Justice on the United States Supreme Court. A graduate of Harvard Law School, he taught law at the University of Virginia and at the University of Chicago. Between these academic appointments, Scalia held several legal positions, including head of the Justice Department's Office of Legal Counsel. In 1982, President ronald reagan appointed Scalia to the United States Court of Appeals for the District of Columbia Circuit. In 1986, Reagan appointed Scalia the 103rd Justice of the United States Supreme Court.

Scalia is often viewed as a leader of the conservative backlash against the warren court. Notwithstanding his conservatism, his judicial philosophy is much more complex. Scalia differs in important respects from the other two Reagan appointees—sandra day o'connor and anthony m. kennedy—and even from william h. rehnquist, whom Reagan elevated to Chief Justice. Of the conservative appointees, only clarence thomas, appointed by President george h. w. bush, seems to share Scalia's philosophy (although Rehnquist may come close). That philosophy has been described by various labels, but textualism or originalism probably is most fitting.

Textualism is often confused with the philosophy of original intent. Thus, it is frequently said that courts should give effect to the intention of the legislators who enacted a law. But Scalia believes what the legislature actually enacted should control, rather than what it subjectively intended. Of course, the two may concur, but when they do not, courts must look to what the legislature promulgated, not what it intended to promulgate.

Scalia believes that a democratic society is bound by validly passed laws, not by the unexpressed intent of the lawgiver. Besides, judges are likely to conclude that the legislature intended what a reasonable and intelligent person ought to have intended, which means they are likely to decide the statute means what they think it should mean. Thus, we would have government by the unelected and politically unaccountable federal judiciary rather than by the politically responsible legislature.

Scalia distinguishes textualism from strict constructionism. A statute should not be construed strictly or leniently, he says; rather, it should be construed reasonably to stand for all that it fairly means. In Smith v. United States (1993), for example, the statute provided for an enhanced sentence if a person "uses" a gun in relation to a drug crime. Scalia dissented from the Court's holding that a person who sought to exchange an unloaded gun for cocaine had used a firearm in relation to a drug crime. To "use" a gun, Scalia argued, fairly connotes using the gun as a weapon, not as an item of exchange.

Scalia's view that the objective indication of the statutory words, rather than the legislative intent, should control has led him to reject legislative history—statements made in floor debates, committee testimony, and committee reports—in statutory interpretation. The majority of legislators voted for the language in the law, not for the legislative history. Moreover, knowing that courts rely on legislative history, statements are made deliberately to influence expected litigation. Besides, the Constitution requires both Houses of Congress to pass a law and the President to have a chance to veto it. Committee reports do not satisfy these requirements.

Scalia applies the same principles to constitutional interpretation. That is, he looks for the original meaning of the text, not what the Framers intended. He will consult the federalist papers, because these show how the original document was understood by intelligent people at the time. He does not look to them as evidence of the intent of the Framers.

As Scalia has observed, however, the great debate today is between those few who think the Constitution's meaning does not change (whether they are textualists or adherents to the intent of the Framers) and the many who want to keep the Constitution current with the times. But the Constitution is a democratically adopted text (like statutes are), designed to make change difficult. Only the people, through the amending process, have the authority to change it. Politically unaccountable judges do not have the authority to do so.

Scalia is critical of judges who argue that capital punishment is cruel and unusual punishment in violation of the Eighth Amendment, even though the Constitution refers to the death penalty in three clauses. Under the notion of a living constitution, he says, each judge is free to decide if and when the death penalty became unconstitutional, with no guidance from the text. Harvard Law School Professor Laurence Tribe, however, says Scalia is not being faithful to his textualist approach. Scalia's position is sound, Tribe argues, only if the unexpressed intentions of the Framers control, but Scalia has argued against being bound by the intent of the Framers. Scalia would respond that the language of the Eighth Amendment, read in context, does not support finding the death penalty to be cruel and unusual.

Scalia has been most outspoken regarding the Court's interpretation of the Constitution's due process clauses, which prohibit any person from being deprived of life, liberty, or property without due process of law. By their terms, these clauses are limited to process (the state can take life, liberty, or property if it provides due procedures), but departing from the text, the Court has used these clauses to protect certain substantive liberties, such as abortion and the right to terminate life support. Scalia has not attacked the very notion of substantive due process but has said that due process only protects those liberties rooted in history and tradition, Michael H. v. Gerald D. (1989). In an abortion case, he also said that it does not follow that the Constitution does not protect childbirth simply because it does not protect abortion, planned parenthood v. casey (1992). Scalia has also written that he would vote to strike down public flogging even if it could be demonstrated that such flogging was not cruel and unusual in 1791, when the Eighth Amendment was adopted. Each of the positions is a departure from pure textualism (or originalism).

maryland v. craig (1990) provides an example of how textualism differs from strict constructionism, and how it can produce results that are not conservative. The majority upheld a procedure that allowed a young sex-abuse victim to testify with the defendant being made to watch over closed-circuit television. Perhaps this was a reasonable procedure to save the victim psychic trauma, but Scalia nonetheless thought it violated the right of confrontation guaranteed by the confrontation clause. When the Constitution was enacted, he argued in dissent, confrontation meant the right to meet face-to-face those who testify at trial. Judges do not have authority to balance a right the text explicitly provides against their view of the public interest.

Joseph D. Grano


Dworkin, Ronald 1997 Fidelity as Integrity: The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve. Fordham Law Review 65:1249–1268.

Fox, Autumn and Mc Allister, Stephen R. 1997 An Eagle Soaring: The Jurisprudence of Justice Antonin Scalia. Campbell Law Review 19:223–309.

Gerhardt, Michael J. 1994 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia. Boston University Law Review 74:25–66.

Liess, Elizabeth A. 1993 Comment: Censoring Legislative History: Justice Scalia on the Use of Legislative History in Statutory Interpretation. Nebraska Law Review 72:568–585.

Scalia, Antonin 1989 Originalism: The Lesser Evil. Cincinnati Law Review 56:849–865.

——1997 A Matter of Interpretation. Princeton, N.J.: Princeton University Press.

Shattuck, Timothy L. Raschke 1992 Justice Scalia's Due Process Methodology: Examining Specific Traditions. Southern California Law Review 65:2743–2791.