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We’re all accustomed to the picture of the immensely intelligent choose who discerns the perfect rule of widespread legislation for the case at hand. In line with U.S. Supreme Court docket Justice Antonin Scalia, a choose like this will maneuver via earlier instances to realize the specified intention―“distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal―good law.” But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.
In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution’s original meaning. Although not subscribing to the “strict constructionism” that may stop making use of the Structure to trendy circumstances, Scalia emphatically rejects the concept judges can correctly “smuggle” in new rights or deny previous rights through the use of the Due Course of Clause, as an example. Actually, such judicial discretion would possibly result in the destruction of the Invoice of Rights if a majority of the judges ever wished to succeed in that almost all undesirable of targets.
This essay is adopted by 4 commentaries by Professors Gordon Wooden, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who have interaction Justice Scalia’s concepts about judicial interpretation from various standpoints. Within the spirit of debate, Justice Scalia responds to those critics.
That includes a brand new foreword that discusses Scalia’s affect, jurisprudence, and legacy, this witty and trenchant alternate illuminates the brilliance of probably the most influential authorized minds of our time.
Writer : Princeton College Press; Revised version (January 30, 2018)
Language : English
Paperback : 200 pages
ISBN-10 : 0691174040
ISBN-13 : 978-0691174044
Merchandise Weight : 9 ounces
Dimensions : 5.5 x 0.45 x 8.5 inches