Scalia argues for reasonable interpretation of the text (when it comes to both statutory and constitutional interpretation) that does not give meaning to the text 'that the language will not bear' (37). However, he seems to agree to an extent with Dworkin that the Constitution outlines a set of abstract principles; 'The Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation' (37) However, he maintains that we cannot give meaning to the text 'that the language will not bear'.
In discussing the First Amendment Scalia shows an appreciation for 'new and unforeseen phenomena' (45) such as technology and forms of communication that were not present at the time of the formulation of the Constitution. It seems to perfectly acceptable that 'new and unforeseen phenomena' need to be accounted for and Scalia's method is to 'follow the trajectory' (45) of the provisions and apply them to the current situation. I feel that this task is not possible with Scalia's objection to a 'Living Consitution' and his apprehension to giving meaning to the text beyond what the text embodies, because I feel that in such cases force us to give new meaning to text for our societal structure and moral values have changed.
ReplyDeleteHi Kaamil! I would definitely agree that there is some inconsistency with Scalia’s method, but I would like to propose a way to reconcile this disagreement. Keeping up with the “new and unforeseen phenomena” seems to contradict his argument against the Living Constitution. I think that Scalia’s main concern with the Living Constitution is that there is no “guiding principle of the evolution” (45). He fears that this method will allow evolutionist judges to use whatever is at their disposal to rationalize their decision. Thus, Scalia prefers the originalist interpretation since the original meaning provides some direction. Maybe Scalia’s approach of “follow[ing] the trajectory” regarding the “new and unforeseen phenomena” in the First Amendment could be a potential way to instill some guidance to the Living Constitution’s problematic ambiguity.