A Hobbesian Bundle of Lockean Sticks: The Property Rights Legacy of Justice Scalia

No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation

Antonin Scalia, Baruch Spinoza, and the Relationship Between Church and State

I begin with an outline of Spinoza\u27s philosophy on church and state, followed by a demonstration that Scalia is headed in the same direction. I conclude by considering how Spinoza and Scalia might react to recent litigation in South Dakota involving an excommunication from a close-knit religious community, the Hutterite Church

Liberal Justices\u27 Reliance on Legislative History

This Article presents a strong case against the conventional wisdom that legislative history is a politicized\u27 resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors explain how liberal Justices use legislative history to illuminate the contours of complex statutory bargains that often favor conservative or pro-employer positions. After considering alternative explanations, the authors conclude that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The Article also describes how, in the face of Justice Scalia\u27s fervent opposition to legislative history, liberal Justices since 1986 have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals\u27 strategic restraint is that their use of legislative history in the remaining (mostly pro-employee) majority opinions appears more ideological than it was before Scalia joined the Court. Intriguingly, Justice Scalia\u27s strong resistance to legislative history when used by liberal Justices does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues more of a free ride: he is as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not

Justice Scalia and Queen Anne

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect. Keywords: originalism, original meaning, Scalia, interpretation, meanin

Defending Defenders: Remarks on Nichol and Pierce

Both Nichol and Pierce, as devotees of grand theory, are interested in analyzing Scalia\u27s agenda, however described. They view Defenders as a fundamental change in the Court\u27s standing jurisprudence, in part because of the symbolism they and their fellow detractors impart to the decision. In contrast, the author is apparently a miniaturist, at least when it comes to the possibility of grand theories and broader agendas. Like Justice Kennedy, the author does not read Justice Scalia\u27s opinion to hold that Congress cannot confer standing by defining an injury and relating it to a class of persons entitled to sue

A Thought Experiment

Herewith, Justice Antonin Scalia\u27s long lost dissenting opinion in Brown v. Board of Education

Liberal Justices\u27 Reliance on Legislative History

This Article presents a strong case against the conventional wisdom that legislative history is a politicized\u27 resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors explain how liberal Justices use legislative history to illuminate the contours of complex statutory bargains that often favor conservative or pro-employer positions. After considering alternative explanations, the authors conclude that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The Article also describes how, in the face of Justice Scalia\u27s fervent opposition to legislative history, liberal Justices since 1986 have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals\u27 strategic restraint is that their use of legislative history in the remaining (mostly pro-employee) majority opinions appears more ideological than it was before Scalia joined the Court. Intriguingly, Justice Scalia\u27s strong resistance to legislative history when used by liberal Justices does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues more of a free ride: he is as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not

Ugly American Hermeneutics

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud

Ugly American Hermeneutics

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud

Legislative Process and Intent in Justice Scalia\u27s Interpretive Method

This article explores Justice Scalia\u27s views on the legislative process and his interpretive methodology which questions using legislative intent when interpreting statutes. Unlike other recent scholarship which focuses on Scalia\u27s interpretive method, this article is somewhat more expansive. It will examine his views towards the legislative process and decision-making, including his approach and methodology used in interpreting legislative pronouncements. To do this, the article will first provide an assessment of recent legal scholarship describing Scalia\u27s interpretive jurisprudence. The goal here is to establish a description of the legal community\u27s perspective regarding Scalia\u27s views towards interpreting statutes. The second section will then explore Scalia\u27s view of legislative process and intent, and his belief that both should control judicial construction of the laws. Contrary to existing scholarship on Scalia, the conclusion will argue that Scalia employs an inconsistently applied interpretive method that adopts amercurial attitude towards legislative power and the political process. This inconsistent attitude towards using legislative intent is a result of Scalia\u27s often distrustful view of legislative power. Further, this distrust is a consequence of Scalia\u27s political preferences. This essay argues that such an inconsistent application and use of policy preferences is troublesome. This is true especially in light of Scalia\u27s own assertions that the only checks on the arbitrariness of federal judges are the insistence upon consistency and the application of the teachings of the mother of consistency, logic