Justice Antonin Scalia's Textualism and the Legislative Process

[NolaAuTiger 3,295]

I'm interested to know if anyone shares in my intrigue with the legislative process and how that informs judicial interpretation of statutes - notably Scalia's loyalty to textualism. I would purport that a greater understanding of the legislative process, specifically legislative compromise, perhaps eases the tensions that many have with Scalia's notable opinions. In a nutshell, legislative compromise embodies the process of making law - i.e., how the words of a proposed law become law. Many times, the words initially proposed at the beginning of the legislative process are not those literally embodied with the passing of the specific law. My understanding of the legislative process typically places me in the minority of the legal realm - because it causes me to be more appreciative and understanding of Scalia's method of interpretation as opposed to being critical of it.

I suppose the opposing method of interpretation would assert that judges should regularly look beyond the words of a law and take other things into account such as legislative intent and legislative history. 

The rejection of Scalia's textualist ideals is evident among the judicial process of today. This is unfortunate. Notwithstanding the Constitutional arguments available on both sides, from a strictly federal statutory standpoint, I am beginning to see it more and more that Scalia's textualism was not absurd as many would purport. It's sad, that even during his day, despite the impacts he made on the judicial system, many of his most profound opinions were his dissents - the explanation being, he refused to divorce his ideology. And I don't mean that ideologies of distinct judges should overwhelming dictate judicial opinion. 

Generally, prior to Scalia's SCOUTS arrival, accepted statutory interpretation permitted judges to impose consonance upon controversial legislative products. Legal texts (distinct from jurisprudence) were more conformable overall due to the notion that judges could smooth rigid rules into more flexible standards when the objective of said texts so required.  Scalia labored and had much success in disrupting the consensus.

This is not say that where a statute is ambiguous, there's no room for interpretation beyond the actual text of the statute, i.e., legislative intent. However, this is to say, that generally speaking, the text of a statute is the law - even if the intent of the legislature isn't perfected in the words themselves. This raises many eyebrows because, conceptually, conventional thought affirms that people, in the practical sense, make mistakes and at times employ wordage that shouldn't be taken at face-value. Rather, to make sense in a meaningful way, one often has to look beyond the actual words used. However, my problem with this thought process stems from the complexities and vast number of brains at work in the passing of law. Such a standard that asserts "humans make mistakes and sometimes don't employ the words necessary to represent their true intent thus we should take intent into account, even if it requires us to look beyond the words of the law," fails to consider the vast process involved in making law and the number of parties involved. The refining involved in the passage of law necessarily should, IMO, cause one to question the utilization of "humans make mistakes" example I referred to in re law and interpretation. In other words, Scalia's interpretative method (textualism) more closely comports with the product of the legislative process as opposed to some other method, i.e., legislative history. 

 

[Brad_ATX 13,654]

It's an interesting conversation, but like all things, I think there's truth in the middle.  With respect to not overriding the texts as written, it makes more sense to me in a modern era than when looking at laws from bygone years.  For example, let's take the 2nd Amendment.  (No, I don't want to take this into a debate on that.)  One could rightfully argue that our Founding Fathers could not have foreseen the preponderance of firearms in society today and their capabilities.  A good/great musket shooter could fire three, somewhat accurate, shots in a minute during the late 1700s.  Fast forward to now and three shots take less than three seconds.  No amount of debate in Philadelphia would have included a scenario where shots could be fired so quickly.  So for me, having the ability to apply the laws to modern times makes sense.  However, if a bill passes in the last 10-20 years, then yeah, I tend to side with Scalia's textual instincts.

[NolaAuTiger 3,295]

3 hours ago, Brad_ATX said:

It's an interesting conversation, but like all things, I think there's truth in the middle.  With respect to not overriding the texts as written, it makes more sense to me in a modern era than when looking at laws from bygone years.  For example, let's take the 2nd Amendment.  (No, I don't want to take this into a debate on that.)  One could rightfully argue that our Founding Fathers could not have foreseen the preponderance of firearms in society today and their capabilities.  A good/great musket shooter could fire three, somewhat accurate, shots in a minute during the late 1700s.  Fast forward to now and three shots take less than three seconds.  No amount of debate in Philadelphia would have included a scenario where shots could be fired so quickly.  So for me, having the ability to apply the laws to modern times makes sense.  However, if a bill passes in the last 10-20 years, then yeah, I tend to side with Scalia's textual instincts.

Check out Scalia's opinion re Heller. A monumental 2d Amend. case. I believe (and the article does say, i think) the vote was 5-4 on the issue. Provides some input of his on this exact point. It is referred to in the article below. 

http://www.businessinsider.com/justice-scalia-opinion-in-heller-2016-2