One of My Favorite Judges: Constitutional Interpretation, Democracy and Antonin Scalia
| Author | James Allan |
| Position | Garrick Professor of Law, T.C. Beirne School of Law, University of Queensland |
| Pages | 25-40 |
One Of My favOrite Judges: COnstitutiOnal
interpretatiOn, deMOCraCy and antOnin sCalia
James Allan*
University of Queensland
ABSTRACT
In this article the author explains why Antonin Scalia was one of his favourite judges.
It starts by excerpting some of Justice Scalia’s most biting and funny comments, both
from judicial and extra-judicial sources. Then it explains the attractions of an originalist
approach to constitutional interpretation, though arguing that the intentionalist strain is
preferable to Scalia’s ‘original public meaning’ or ‘new originalism’ approach. Finally,
it argues that within the connes of a constitutional structure with an entrenched bill
of rights, Scalia was a strong proponent of democratic decision-making to resolve key
social policy decisions, unlike many other top judges.
Br. J. Am. Leg. Studies 6(1) (2017), DOI: 10.1515/bjals-2017-0003
© 2017 James Allan, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Garrick Professor of Law, T.C. Beirne School of Law, University of Queensland
CONTENTS
i. Blunt and Biting .......................................................................................... 27
ii. COnstitutiOnal interpretatiOn: sCalia the Originalist ............................32
iii. sCalia and the sCOpe fOr deMOCratiC deCisiOn-Making..........................38
iv. COnCluding reMarks .................................................................................40
6 Br. J. Am. Leg. Studies (2017)
It is best to start by making it clear that on some big issues I differed with the views
of former U.S. Supreme Court Justice Antonin Scalia. For instance, I am a critic
of bills of rights, be they of the entrenched, constitutionalized United States and
Canadian varieties or of the statutory United Kingdom and New Zealand varieties.1
By contrast, Justice Antonin Scalia supported the U.S.-style bill of rights that he
was regularly called upon to interpret.2 Furthermore, I am an ‘Original Intended
Meaning’ (‘OIM’) originalist, the sort that thinks it is authors’ intentions that
count, that provide the legitimate and authoritative external standards that point-
of-application interpreters ought to seek and that can constrain those interpreters
in a way that ‘living tree/living Constitution’ and ‘moral’ interpretations never can.
Justice Scalia rejected that sort of OIM originalism, sometimes quite sharply,3 in
favor of searching for what a well-educated and knowledgeable person at the time
would have taken the words to mean. Scalia’s version of originalism is known as
‘textualism’ or as ‘Original Public Meaning’ or ‘OPM’ or ‘new’ originalism.
I mention those differences, indeed will come back to them below, for the sake
of providing the reader with a bit of perspective on what follows. Bear them in mind
because in big picture terms in this article I come to praise Antonin Scalia, not to
bury him. In fact Scalia was (and is) one of my favorite judges. As many readers
will realize, that is not a sentiment that is or was widely held by law professors in
the United States.4 And it was probably even less widely held by legal academics in
1 I have criticized bills of rights at length and in a host of contexts. For a selected few
instances see e.g., James Allan, Bills of Rights and Judicial Power – A Liberal’s Quandary?
16 OxfOrd J. leg. stud. 337 (1996); JaMes allan, Rights, Paternalism, Constitutions
and Judges, in litigating rights: perspeCtives frOM dOMestiC and internatiOnal law
29 (Grand Huscroft & Paul Rishworth eds., 2002); James Allan, Oh That I Were Made
Judge in the Land, 30 fed. l. rev. 561 (2002); James Allan, A Modest Proposal, 23
OxfOrd J. leg. stud. 197 (2003); James Allan, An Unashamed Majoritarian, 27 dal. l.
J. 537 (2004); James Allan and Grant Huscroft, Rights Internationalism Coming Home
to Roost? 43 san diegO l. rev. 1 (2006); James Allan, Portia, Bassanio or Dick the
Butcher? Constraining Judges in the Twenty-First Century, 17 king’s. l. J. 1 (2006);
James Allan, Jeremy Waldron and the Philosopher’s Stone, 45 san diegO l. rev. 133
(2008); James Allan, Meagher ’s Mischaracterisations of Majoritarianism, 20 king’s l.
J. 115 (2009); JaMes allan, deMOCraCy in deCline (2014).
2 But the support was qualied. Yes, Scalia supported the U.S. Bill of Rights but main-
tained that the rights enshrined in it were only guaranteed by the structure of govern-
ment established in the Constitution: ‘Every tin horn dictator in the world today, every
president for life, has a Bill of Rights. That’s not what makes us free; if it did, you would
rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world
that have a Bill of Rights. What has made us free is our Constitution. Think of the word
“constitution”; it means structure […] The genius of the American constitutional system
is the dispersal of power. Once power is centralized in one person, or one part [of gov-
ernment], a Bill of Rights is just words on paper.’ Justice Antonin Scalia, Address at the
Federalist Society (May 8, 2015).
3 See Justice Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of
United States Federal Courts in Interpreting the Constitution and Laws, in a Matter Of
interpretatiOn (Amy Gutmann ed., 1998).
4 Jeremy Waldron, before twice quoting Justice Scalia at length, obliquely, mockingly and
disapprovingly refers to this widespread dislike of Scalia’s views in the U.S. legal academy
by saying ‘(It is time to roll your eyes now and pay no attention for a few minutes, because
I am going to quote Justice Antonin Scalia and quote him at length.)’ See Jeremy Waldron,
The Core of the Case Against Judicial Review, 115 yale l. J. 1346, 1390 (2006).
26
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