Sunday, July 22, 2012

Scalia, Textualism and The Interpretive "Rule of the 18th Century Brits"

In an illuminating interview with CNN's Piers Morgan last week,  U.S. Supreme Court Justice Antonin Scalia discussed freedom of speech, flag burning, and the unchecked influx of corporate money into Presidential politics.

Justifying the Court's decision in Citizens United,  Scalia contended "Thomas Jefferson would have said  'the more speech the better - that's what the First Amendment is all about," and claimed it is "utterly impossible" to separate speech from the money that facilitates the speech.

Then there was this fascinating exchange, as Scalia articulated his view on the limits of freedom of speech, as  intended by the Framers:
Piers Morgan: Is there any limit, in your eyes. to freedom of speech? What are the limitations to you?
Justice Scalia: Oh. Of course.  I am a textualist.  And what the provision reads is "Congress shall make no law abridging the freedom of speech..."
So they had in mind a particular freedom.   
What freedom of speech? 
The right of freedom of speech that was the right of Englishmen at that time.
Is Scalia truly contending that U.S. constitutional interpretation must ultimately be frozen in time - to be determined solely with reference to the rights and expectations of 18th century Brits?

If so, doesn't this pose a bit of a conundrum for America?  

Having just overthrown the British in a bloody revolution, the textualists argue, the framers then opted to permanently tie the constitutional hands of American lawmakers to the sensibilities and statutes of the old men of another country, far away in distance and time - a country, in fact, from which America had just declared its independence. 

British lawmakers, of course,would not have been handicapped by any parallel limitation on how their nation's laws could evolve and adapt, moving forward from the 18th century. 

According to Scalia, then, while the British would have retained the luxury of interpretive constitutional modernity, America did not.  

(Who won the American Revolution, again?)

Apparently, such "textualism" passes as an enlightened and persuasive point of view in conservative legal corners of the U.S.  


Video of the exchange is below:


- Garry J. Wise, Toronto
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