Re: Scalia, Textualism, and Printz

[Eric Segall]

A larger problem for Justice Scalia in Printz is that after he says text doesn't help (which by the way it does, see Steven's dissent), is that Scalia then purports to look at history, structure, and precedent, though history and structure clearly cut against the result. New York does support the decision but is also inconsistent with text, structure, and history. In other words, Printz is indefensible without reliance on "policy," an interpretative device that Scalia, of course, fails to mention.   Eric Segall GSU College of Law >>> [EMAIL PROTECTED] 10/15/03 01:23PM >>> Scott: Do you think Scalia was being inconsistent in this case? In addition to Larry Tribe's comment, I would recommend Sandy Levinson's piece, "The Operational Irrelevance of Originalism." The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas Scott Gerber wrote: > Bobby: > > You're assuming that Justice Scalia is being consistent. Prof. Tribe wrote > a wonderful comment in the Harvard Law Review about the Saenz case that > convinced me (if I needed more convincing) that almost none of the justices > (conservative or liberal) are methodologically consistent. I highly > recommend it. > > Best, > Scott > > Why would a self-described textualist, like Scalia, examine the > constitutionality of a law while admitting that no text is involved > authorizing or prohibiting the law (Printz)? Is it because if a textualist > insists that that when the Constitution is silent, Congress may act, one is > then turning the federal government into a government with unenumerated and > perhaps unlimited powers? > > Bobby Lipkin > Widener University School of Law > Delaware > > ********** > Scott Gerber > Law College > Ohio Northern University > Ada, OH 45810 > 419-772-2219 > http://www.law.onu.edu/faculty/gerber/