It is an easy constitutional case, according to Justice Antonin Scalia.
It is only easy-- seemingly-- if one adopts the method of constitutional interpretation that he promotes, which he refers to as "textualism." Scalia recently co-authored a book on the subject (with Bryan Garner), and has written other interesting books and articles on the preferred method of constitutional interpretation-- in addition to his writings in judicial decisions, of course.
Some things to note: First, textualism, as Scalia would acknowledge, has to be aided by other methods of interpretation depending on the legal language at issue and the larger legal context. Therefore, part of the difficulty of textualism is setting clear criteria for when to depart from and aid a textualist reading and consistently applying those standards of departure. This was Richard Posner's major assertion in his review of Scalia and Garner-- that textualism is not actually 'easier' because it is just as complicated (and incoherent) as any other method of constitutional interpretation in application.
Second, Scalia acknowledges that the Constitution is very difficult-- perhaps too difficult-- to amend. This fact, I think, is one of the reasons why the Supreme Court, at critical points in American history, has creatively reinterpreted the Constitution to provide necessary structural change to our governing system. Widening the scope of the interstate commerce clause, for example, was, I think, a necessary readjustment of the balance of federal and state power as a result of the industrial revolution.
I'm not sure that Roe v. Wade was one of those moments of necessary readjustment, although I think the justices in the majority at the time might have seen the democratic process as gummed up and in need of a little judicial push in the direction of abortion rights. Legislative movements in the early 1970s for abortion legalization beyond the American Law Institute model had largely stalled, and I'm not sure that abortion laws reflected the local or national weight of public opinion. Of course, one could say that about many state and national policies, so that alone is not a justification for using judicial review to make major adjustments.
Even so, the existence of a right of abortion-- perhaps not of the nature and scope of the one in Roe-- is defendable using a number of other standard methods of constitutional interpretation.
Links:
The Associated Press article on Justice Scalia's recent comments: Scalia says abortion, gay rights are easy cases
Federal judge, author, and law professor Richard Posner reviews (and destroys) Justice Scalia's new book: The Incoherence of Antonin Scalia
Justice Scalia's interesting and cogent earlier book on constitutional interpretation (which also contains rebuttal essays): A Matter of Interpretation
It is only easy-- seemingly-- if one adopts the method of constitutional interpretation that he promotes, which he refers to as "textualism." Scalia recently co-authored a book on the subject (with Bryan Garner), and has written other interesting books and articles on the preferred method of constitutional interpretation-- in addition to his writings in judicial decisions, of course.
Some things to note: First, textualism, as Scalia would acknowledge, has to be aided by other methods of interpretation depending on the legal language at issue and the larger legal context. Therefore, part of the difficulty of textualism is setting clear criteria for when to depart from and aid a textualist reading and consistently applying those standards of departure. This was Richard Posner's major assertion in his review of Scalia and Garner-- that textualism is not actually 'easier' because it is just as complicated (and incoherent) as any other method of constitutional interpretation in application.
Second, Scalia acknowledges that the Constitution is very difficult-- perhaps too difficult-- to amend. This fact, I think, is one of the reasons why the Supreme Court, at critical points in American history, has creatively reinterpreted the Constitution to provide necessary structural change to our governing system. Widening the scope of the interstate commerce clause, for example, was, I think, a necessary readjustment of the balance of federal and state power as a result of the industrial revolution.
I'm not sure that Roe v. Wade was one of those moments of necessary readjustment, although I think the justices in the majority at the time might have seen the democratic process as gummed up and in need of a little judicial push in the direction of abortion rights. Legislative movements in the early 1970s for abortion legalization beyond the American Law Institute model had largely stalled, and I'm not sure that abortion laws reflected the local or national weight of public opinion. Of course, one could say that about many state and national policies, so that alone is not a justification for using judicial review to make major adjustments.
Even so, the existence of a right of abortion-- perhaps not of the nature and scope of the one in Roe-- is defendable using a number of other standard methods of constitutional interpretation.
Links:
The Associated Press article on Justice Scalia's recent comments: Scalia says abortion, gay rights are easy cases
Federal judge, author, and law professor Richard Posner reviews (and destroys) Justice Scalia's new book: The Incoherence of Antonin Scalia
Justice Scalia's interesting and cogent earlier book on constitutional interpretation (which also contains rebuttal essays): A Matter of Interpretation
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