In Defense of Scalia's Textualism

It's a simple point, I think. Judges have granted themselves the ultimate say in legislation-- a power not mentioned in the Constitution, and only negated through the extremely difficult amendment process.

Given the scope of this power, shouldn't they restrain themselves in exercising it? Shouldn't they look for outside restraints on the scope of their self-declared power, rather than relying upon their own whims or idiosyncratic (and politicized) senses of "justice"?

And if they're looking for an outside restraint on their power, why not allow the actual words of the Constitution itself -- the document they are supposedly interpreting, and the document from which they supposedly derive their power to overrule Congresses and Presidents -- to be that external restraint?

By refusing to be bound by the actual words of the Constitution, liberal activist judges have both made a mockery of their own claims of "interpreting" the document, and have futhermore thrown off the last restraints on their incredible power, retraint that could be obtained by simply limiting themselves to words found explicitly within the four corners of the Constitution.

Right Reason makes similar points, only better. And also starts off by quoting one of my favorite scenes from one of my favorite movies-- the "subtext/text" bit from Whit Stilman's bumptuously-jingoistic Barcelona.

posted by Ace at 03:18 PM

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