A Matter of Interpretation: Federal Courts and the Law [Paperback]

The term "interpretation" now includes the raw law making and law setting-aside power that has ripped the fundamental freedom of self governance. Have you ever wondered, when you've read a recent Supreme Court ruling about the latest, newly-unconstitutional law, that the attendant ruling makes no reference to any specific part of the Constitution? Instead, Justices refer to their previously-declared law on that or even another subject. In effect, courts have "interpreted" new law, then used that interpretation or some arbitrary re-interpretation to make whatever decision they think is best. This has led to the bold ignoring of the written law in favor of what judges (and their attendant activists) believe "should" be the law.

In this 50-page main article, Scalia lances a splinter in the eye of the "living Constitution" people. Don't get it, yet? Well, Scalia will be happy to jam a 2x4 piece of lumber in that same eye - his footnoting is right on point. In contrast, the critiques by famous (and liberal) Harvard law professors and other attendants pale in comparison. I suspect that is why the good Justice agreed to write the book in this manner. The Harvard types furnish only silly words-without-meaning to support their claims of a "living Constitution". The contrast is spectacular and enlightening.

I like a good debate just as anyone else does, but this book descends into the realm of "pinhead intellectualism." I guess that's necessary in the nuts-and-bolts of appellate law, but that leaves a very small audience of satisfied book buyers.

While it's main point - the difference between being a "textualist" versus a "strict constitutionalist" is well taken, for most of us this book is a tough read. If you're Harvard Law (or Hofstra), go ahead.

Scalia it would seem proposes what true Biblical exegeis seeks, to find the original intent, while Tribe hedges on this even being possible. As Scalia succinctly puts it in his reply, "if one can't interpret original meaning in the Constitution, can we have any fair statutes?

Salient was this Scalia retort to Tribe: "Prof. Tribe takes refuge in candar and ... self-conscious humility. Rejecting base certitude he acknowledges that he does not know the answer to either of these questions. Indeed, he is not even sure and mean to disparage candor and humility, virtues that are not only admirable but also rare, particularly in intellectual circles. They would assuredly carry the day if the issue before us were quality of character, rather than soundness of interpretative theory. But they are of little use to the judge who must determine whether and whither the Constitution has wandered, and who is not permitted to render a candid and humble judgment of undecided."

Amazed as questioning of inclusion of Constitutional interpretation while entertaining statutes. Does not the Constitution form the basis for all law?

Scalia easily carries the day in this excellent discussion.