Scalia and language

Scalia’s originalism is such intellectual crap.  I always love a piece that cogently makes this point.  In this case, the New Yorker’s Jeff Shesol does so in regards to Scalia’s dissent in a recent 2nd amendment case where the Supreme Court, 5-4, allowed a law that prevents straw gun buyers:

What Kagan has done, in a neat twist on Scalia’s analogy, is to highlight the ambiguity and contingency of language. And that, for Scalia, is something that can never be acknowledged, because it would lay bare the game he plays. His approach has always been to reach for a dictionary; find, in one edition or other, a definition that drives toward his predetermined decision; and express, eyes wide with disbelief, utter amazement that anyone could even think of seeing it any other way…  [emphasis mine]

In other instances, Scalia’s word games have had profound, societal implications, leading to—in at least one case—a dramatic shift in constitutional law. In District of Columbia v. Heller, which Scalia considers his greatest achievement, he relied not on one but on three eighteenth-century dictionaries to “clarify” the Second Amendment, which reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” By the time that Scalia had finished his exegesis, the “prefatory clause” about a militia had been clarified into irrelevance, and “bear arms” had been so scrutinized and squinted at and worked over that Americans awoke to find that they had a new, individual right to carry a handgun—a right that cannot be found in the language, plain or otherwise, of the Constitution. Michael Waldman, who has just published a book on the Second Amendment, observes that Scalia, in his opinion, “has the feel of an ambitious Scrabble player trying too hard to prove that triple word score really does exist.”

 

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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