NCSU Scholars grateful for time with fun-loving, principled Scalia http://www.newsobserver.com/news/local/education/article60935107.html U.S. Supreme Court Justice Antonin Scalia was known for his indelible wit and intellect, his strict interpretation of the Constitution and his view on the role of judges in a democratic society. He was also a kindly host to students, with a little-known but special connection to N.C. State University. In 2003, at the prompting of his then-law clerk, John O’Quinn, the justice met with a group of NCSU’s Park Scholars. O’Quinn, a Harvard law graduate and former student body president at N.C. State, was one of four Scalia clerks at the high court. He persuaded his boss to give a brief talk to the students. It would become a regular event, when each class of Park Scholars made an annual trek to Washington. They would tour the Supreme Court and meet in a conference room with Scalia, who answered their questions. Then he’d pose for a photograph with the class in a small courtyard. There were only a few years when Scalia wasn’t available, so he’d ask his clerks, and once, Justice Clarence Thomas, to stand in. “It was all very exciting,” said Amanda Sautner, 20, an NCSU junior from Warrington, Pa., who was part of the group in 2014. “He came in, and I remember he really commanded a presence. He was very sure of himself and had very strong opinions.” The discussion centered on the Constitution and whether it was a living document – an idea Scalia rejected. Since his death Saturday, Park Scholars past and present are realizing what an opportunity they had. “It was just a very special moment,” Sautner said, “and I’m glad that I could have that before he passed away.” O’Quinn, who grew up in Fuquay-Varina, is remembering, too. Devastated to learn that his mentor was gone so suddenly, O’Quinn has thought about his year clerking at the Supreme Court, an experience he describes as “awe-inspiring.” Now a partner in a Washington law firm, O’Quinn, 41, remembers the vigorous debates, the mountains of work and the back-and-forth with Scalia. He and three other clerks served one full term, summarizing some of the 8,000 petitions that come to the court and preparing briefs prior to oral arguments for the cases the court takes up. After the arguments, clerks helped with early drafts of opinions. In the 2002-03 term, Scalia authored a fair number of dissenting opinions. “Every memorable Scalia line you’ve ever read was entirely Justice Scalia,” O’Quinn said. “Law clerks would occasionally try to imitate, but none came close. He was genuine through and through in that regard. ... He had an incomparable rhetorical flair.” (More at above url)
How Antonin Scalia Changed America 19 top legal thinkers on the justice’s legacy for the court, the law and the public http://www.politico.com/magazine/story/2016/02/antonin-scalia-how-he-changed-america-213631
Eskridge at Yale gets him absolutely right to my way of thinking. Scalia was textual only when the text said what he wanted it to say . The rest of the time he was an Originalist. He used his idea of originalism, as I pointed out in my essay, to get around the problems presented by his claiming to be a textualist. By insisting that the Constitution was dead, he precluded interpretation of our Constitution in light of modern reality. He used originalism and textualism as tools to get what he wanted. The worst of the two tools was originalism which allowed him to replace, on occasion , the modern, present day, Semi-democratic, American Republic with the Plutocratic Republic it was in the eighteenth Century. His device of Originalism to get around the problems created by rigid textualism are nowhere more evident than in Heller.
In fairness to Scalia, it must be said that treating the Constitution as a living document, as the other Justices tend to do, with the possible exception of Thomas, rather than the dead document Antonin Scalia insisted it was, creates a new set of problems. Try as one might it is sometimes well neigh impossible for the Court to twist , stretch and bend it into the Twenty-first Century without raising eyebrows on one side or other of the political spectrum. The Constitution, nevertheless, was originally crafted with such sparse use of words as to often lend itself to fluid interpretation. This surely was irony to an Originalist such as Scalia who steadfastly argued the document was dead!
I read few essays and its odd that seem to try and diminish originalism and act like Scalia moved the country in that direction via his intellect and writing. They authors they picked seemed so bias in their writing I though they were from Mars. Lawyers always look to the law as they research their case. That is what lawyers do. The constitution is the first place we look. In criminal law its all about the constitution form jurisdiction to due process. Lawyers read what the constitution says. One of my first year professors put it this way... If the law is on your side you argue the law. If the facts are on your side, you argue the facts. If neither is on our side you bang the table and make a lot of noise. If you don't like the way the constitution is written... you amend it. And Scalia was certainly not the first to look to the text and the meaning at that time. .. https://en.wikipedia.org/wiki/Living_Constitution Thomas Jefferson is often cited as advocating for a "living document" interpretation, based on a plaque in the Jefferson Memorial, but this "quote" is actually abbreviated, with the original actually being a defense of using the amendment process if the Constitution needed to change...the bold parts following are Memorial version, the plain is the full quote in context: “ I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors...[it] will be said it is easier to find faults than to amend [the Constitution]. I do not think...amendment so difficult as is pretended. Only lay down true principles, and adhere to them inflexibly.[12][13] ” He also warned against treating the Constitution as "a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please."[14] Jefferson's understanding of how the Constitution should be interpreted is made clear in a letter he wrote March 27, 1801, after assuming the Presidency, "The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,—a meaning to be found in the explanations of those who advocated (it)...These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question."
This essay on Umberto Eco's passing, and historiography, made me recall the textualism vs. originalism discussion you started here. It's not a problem with a solution (the best kind). A Rose by Any Other Name: Umberto Eco (1932-2016) By Alexander Lee Posted 24th February 2016, 10:15 "Although he was many things to many people over the course of his career, Eco was, first and foremost, an historian railing against modernism in all its forms. "William Shakespeare’s Romeo and Juliet is a tragedy of names. In the famous balcony scene (Act 2, scene 2), Juliet appears at her window and proclaims her love for Romeo, unaware that he is hiding in the orchard below. If their families were not sworn enemies, she sighs, they could surely wed. But so long as he is a Montague and she is a Capulet, they are doomed to be apart. The only way around the heart-wrenching dilemma – it seems – would be for him to cast off his name, or allow her to renounce her own. It wouldn’t change anything about either of them. After all, she asks, What’s in a name? that which we call a rose By any other name would smell as sweet; So Romeo would, were he not Romeo call’d Retain that dear perfection which he owes Without that title. "It is one of the most memorable scenes in the Shakespearean canon, and has become so firmly engrained in the popular imagination that ‘a rose by any other name’ is now a kind of romantic shorthand for a lover’s guileless adoration of his beloved’s true self. But it could equally well be taken as a metaphor for modernist approaches to history. "Driven by an unshakable belief in humanity’s capacity for reason, modernism rested on the assumption that objective truths about past realities existed independent of the observer, in the same way..." More >>
First of all I remember loving his book The Name of the Rose years ago when I read it before the movie came out. Next... thank you for sharing that. 3. I thought this comment (pasted below) reader was an interesting point... in that I think we can discover to some degree what the framers meant by seeing what else they wrote and as Jefferson said trying to understand what they intended at the time it was written. "I think it's a bit of a leap from the idea that "objective (observer independent) truths exist about past reality" to "we can discover 'laws' of human society" which, once known, will help us to usher in an era of prosperity free from oppression and superstition. The former proposition is believed by everybody who reports to his friends or family what she had for breakfast; the latter is doubtful, though perhaps not impossible. But rejecting the latter in no way commits me to rejecting the former. There is an overlap between common sense and what you are calling "modernism", but that doesn't mean that modernism is the deeply problematic assumption underlying common sense."
"The former proposition is believed by everybody who reports to his friends or family what she had for breakfast..." As I see it, Eco's point is understanding the meaning of the individual's breakfast. Was it a cup of cottage cheese and half of a grapefruit? No cause to dispute that. Was this a regular breakfast, or did it begin on a January 1st and end 10 days later?
It looks like we both had slightly different takes on the article. I have to admit my bias is to see points like thinks through the filter of Plato's perfect forms in the cave of shadows. I would say your article was implying ecco would say that we never really get a good picture of the the form... just murky shadows that we hang our on view upon. While I would say its a spectrum. We can see some things more clearly than others if we force ourselves to use a clean filter.