Re: Scalia, Textualism, and Printz
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/
Re: Scalia, Textualism, and Printz
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/
Re: Scalia, Textualism, and Printz
If I may be permitted to raise a minor quibble with Scott's point: (1) A demonstration of methodological inconsistency is always difficult. Because judges do not articulate their full theory of the law, the methodology of a particular judge must always be inferred. When trying to prove a charge of methodological inconsistency, one must show that no methodolgy that the judge could have held is consistent with all of the judge's decisions--giving reasonable allowance for the possibility that the judge erred in a nonmethodological way--e.g. misunderstood the facts or the law. This is almost always a hopeless task, because there are too many possible methodologies for the method of elimination to applied effectively. (2) Tribe's Saenz piece does not, in fact, make a charge that individual judges inconsistent. Consider the following passage: Start of quote: Nor do I mean at this point to explore the question whether there is indeed some principled reason to regard the process of making inferences from the Constitution's structure and design as being more appropriate when one derives the details of the separation of powers or of federalism (and then infers the rights of individuals within the system of separated and divided powers from the details thus derived) than when one fills in the details of personal rights that have no particular connection with the institutional and territorial organization of the system of separated and divided powers (but might instead flow no less forcefully from the basic premises and design of an anti- totalitarian legal regime). [FN151] What seems beyond dispute and what is crucial for present purposes is simply this descriptive observation: in the current era, claims of individual rights are most likely to have power and ultimately to prevail if they can be convincingly expressed through the language, and clearly understood through the logic, of such concretely architectural features of the Constitution as the separation of powers or, more to the point here, the federal system of separate, equal, and semi- autonomous states. :End of quote. It is, of course, possible that Scalia is being inconsistent, but there are many other possibilities. Larry Lawrence Solum University of San Diego http://lsolum.blogspot.com Quoting Scott Gerber [EMAIL PROTECTED]: 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/
Re: Scalia, Textualism, and Printz
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/
Re: Scalia, Textualism, and Printz
I must be getting slow in my old age, but I don't see how precedent poses a greater problem for originalists than for those who take other views. A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It is thus analogous to (although different from) a legitimately-adopted constitutional amendment. At 12:23 PM 10/15/2003 -0500, Richard wrote: 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
