tag:blogger.com,1999:blog-9479398.post522789605401140382..comments2024-03-28T11:33:16.271-05:00Comments on Adventus: Antonin, we over-knew yeUnknownnoreply@blogger.comBlogger3125tag:blogger.com,1999:blog-9479398.post-78776776438941761042016-02-20T11:12:25.273-06:002016-02-20T11:12:25.273-06:00I approach interpretation from a hermeneutic forme...I approach interpretation from a hermeneutic formed by my legal education, my seminary education, and my knowledge of literary theory.<br /><br />Which is not to lay down a marker, or brag, or puff myself up. It's just that I've spent most of my adult life working on interpretation in one field or another, and the praise for Scalia's "originalism" strikes me as the ignorant praising the eloquent (you don't have to agree with me, and I don't mean you are wrong in your disagreement).<br /><br />I never found any depth to Scalia's originalism. It wouldn't stand up as a literary theory in a graduate seminar in English, or even in an senior English class. As a hermeneutic, Biblical scholars and textualists would roll their eyes. As legal theory, it alway struck me as threadbare and entirely opportunistic (that is, used as it suited Scalia's prejudices, and quite nakedly so). I contrasted him (here or somewhere, I can't recall where now) with Learned Hand and Cardozo because their opinions, while undoubtedly reflective of their preferences, were deeply and profoundly reasoned; which isn't to say I always agreed with them.<br /><br />Scalia's opinions, to me, were largely the product of a mind convinced of the rightness of it's opinions, considered those opinions as conclusions, and applied them bluntly and stolidly to almost every case it encountered. I read anecdotes, after his death, about how much Scalia liked argument; it was clear from them he enjoyed proving himself right, not in learning from others in a clash of ideas.<br /><br />I never considered him anything more than an ideologue. Of course, I could be wrong. ;-)Rmjhttps://www.blogger.com/profile/06811456254443706479noreply@blogger.comtag:blogger.com,1999:blog-9479398.post-14259759257485491762016-02-19T17:45:14.227-06:002016-02-19T17:45:14.227-06:00"Originalism was never a judicial philosophy ..."Originalism was never a judicial philosophy nor even a coherent set of reasons for statutory or Constitutional interpretation."<br /><br />I don't know if I'd agree with you on that. "Original intent" of course is a historical question, and there's no clean, objective history that everyone will sign off on. But I think it can be approached closely enough to provide some guidance.<br /><br />The problem, as I see it, is that of course contemporary problems and circumstances may require us to move beyond the original intent of the framers. The question is, how should the constitution be changed, by the court or by the people through the amendment process? We've make the constitution into something so sacrosanct that we're almost afraid to amend it, and we've therefore pretty much acquiesced in the court updating it for us in those areas where the people are plainly not fit to decide. It's pretty clean and quick, but it's hardly democratic.<br /><br />My view of Justice Scalia is probably too mixed and mixed-up to go into here (assuming anyone cares, of course). But I would say his very worst opinions were those in which he departed from his own principles. I am thinking first and foremost of Bush v. Gore, where the Constitution pretty plainly leaves controversies about the electoral college with Congress. Also the Smith opinion, which was originally excoriated across the board, but which now has somehow become the "liberal" default.rick allenhttps://www.blogger.com/profile/07612435616018593956noreply@blogger.comtag:blogger.com,1999:blog-9479398.post-51162673291656237952016-02-16T16:15:30.160-06:002016-02-16T16:15:30.160-06:00I admit to having enjoyed a number of his zingers ...I admit to having enjoyed a number of his zingers over the years, if only because I am a student of pith. Not the best legacy one might have...ntoddhttps://www.blogger.com/profile/01068160577299501895noreply@blogger.com