On Text-originalism Of Scalia

Antonin Gregory Scalia(1936-2016)was a Justice of the United States Supreme Court since 1986,he has put forward a set of logical self-consistent,systematic and comprehensive legal interpretation methodology,and its system in judicial decisions and judicial opinions of judicial reasoning and arguments to a new height.He is known for his unique theory and practice of constitutional interpretation from beginning to end,he became an iconic figure of American conservatives in the 20 th century in the 1980 s.He is arguably the most influential and charismatic standard-bearer of American conservatism.In the interpretation of the constitution and the law,Although he regards himself as a originalist,he is different from the old originalist.He emphasizes the interpretation methodology of textualism,advocates the conservative judicial idea,and maintains that judges should be objective and neutral,reject judicial subjectivism,and prevent the improper influence of judges' subjective bias,political tendency or moral choice on judicial interpretation.He emphasized that when interpreting the constitution and laws,judges should avoid exercising the function of the legislature to amend and enact laws with the help of discretion,and should interpret the constitution from the perspective of the text language of the enactment law and seek the common meaning of the statutory meaning so as to achieve a reasonable interpretation of the enactment law.In addition to "introduction" and "conclusion",the main body of this paper consists of five chapters:The first chapter is the appearance of text-originalism of Scalia,which makes a preliminary analysis of Scalia's text-originalism behind the disputes between originalism and non-originalism in constitutional interpretation.The interpretation of the constitution is based on its original meaning or the needs of the society,which been regarded as the key to the debate between the former originalism and the evolutionism of the constitution.In the course of the application of constitutional,both of them have an insuperable defect,which drifts into a mechanical and a single interpretation of philosophy,any one can not solve the problem fundamentally in the interpretation of the constitution.Hence,text-originalism clearly stands against non-originalism,and also comprehensively analysis and develop-discards originalism,emphasizes that the text as the starting point and the foothold of constitutional interpretation.Form the explanation of the method,the text neither been interpreted strictly nor been interpreted broadly as nihilism,but to interpret the constitution reasonably.Thus,the text-originalism presents the characteristics of comprehensive Hermeneutics in the principles and method of constitutional interpretation,and it is better to show the constitution spirit and constitution will in reality.The second chapter is the re-appearance of Scalia's originalism,especially its direct debate and confrontation with the liberal jurisprudence,which leads the originalism theory to a deeper level and better presents the whole theory.For a time in the history of the U.S.Supreme Court,Scalia stood shoulder to shoulder with the illustrious Justices Marshall and Holmes,who earned himself a reputation for bigoted textual-originalism when it came to the interpretation of the constitution.But it also encountered strong criticism and naked questioning "provocation" from Dworkin,Glendon,Tribe,wood and so on.Scalia flags in sharp opposition liberal "living constitution" theory,In particular,when the liberal law scholars interpreted the constitution in the Supreme Court of the United States,they excessively interpreted the constitution subjectively in order to adapt to the so-called practical needs.Scalia believed that this theory was very easy to infiltrate or mix in the subjective intention and bias of judges,and it was very easy to be influenced by politics.It was more likely to become the arbitrariness of the subjective intention of judges,jeopardizing the rule of law and becoming the rule of the individual judge.He believed that the revision and enactment of the constitution and law were the business of the legislature,and that the judge should not assume over the separation of powers of the three branches of government in the United States.He objected to the original intention of the legislator to interpret the history of legislation.That judges should not look at what legislators intend to express,but should pay attention to what legislators finally write in the form of statutory text.It seems to liberal jurist scalia text centrality is extremely easy to make the constitution of the United States a conservative constitution,The restrictions imposed on the protection of citizens' rights and the jurisdiction of the federal government are not only detrimental to the construction of civil society,but also to the performance of government functions,which fundamentally deviates from the framers' original intention.In his opinion,the main task of judges in the formulation of legal texts is to interpret rather than create,and the interpretation of statutory law cannot be regarded as a supplement to the creation of common law.At the same time,even in the field of common law,the primary task of judges is not to create but to discover rules and apply them.Advocates the change of political system,especially the new requirement of the era of enactment for judges,that is,the return of interpretation tradition;In particular,it clarifies the key point of the debate,"how to treat the legislative intention",and advocates the interpretive theory of procedural justice to achieve substantive justice – text-centralism.The third chapter presentsPosner's strong criticism of Scalia's theory and his empty talk.Judge Richard Posner of the United States court of appeals for the 7th circuit,well known to Chinese scholars,Posner believed that Scalia's textualism was just a game of words,deliberately avoiding increasingly complex social problems and attempting to cover up his real political opinions and personal prejudices with the so-called interpretation method,especially the obvious right-wing political color in judicial practice.Sixties and seventies of the last century,Posner has to give all to the legal realism,but in the moment with scarlett and the controversy that Posner has turned to and with the help of legal realism,Scalia for centralized firepower,particularly to Scalia text socialist denounced for legal formalism and elements and the resurgence,and think as a legal person's Scalia for self bias and self preservation,complex reality sense of mission and enterprise lack of challenges,not only easy to law into a zombie doctrine,cannot give full play to its functions and judicial,this formalism is easier to cause the crisis of the constitution of the United States.The fourth chapter starts from Scalia's controversy with liberalism and realism,points out their mistakes in censure and criticism of Scalia,and further presents the comprehensive constitutional interpretation methodology of his textual-originalism.Scalia's camp fought back strongly against Posner's groundless accusation and sharp criticism,and Scalia even angrily accused Posner's criticism of absurdity,which was a kind of lying with open eyes.Whether the liberalism jurisprudence questions or the realism jurisprudence criticizes,it often falls into the misunderstanding in the explanation methodology behind,not only confuses the principle and the method which the Scalia text original meaning doctrine contains,but also throws aside his systematic methodology in the constitution explanation.Scalia's textual originalism emphasizes the text as the starting point and the foothold of constitutional interpretation,but it does not abandon the rationality of other principles besides the core interpretation principle of textualism.At the same time,in addition to the interpretation of basic principles,more emphasis should be placed on the specific methods of interpretation in constitutional practice.Thus Scalia's textual centralism constructs a comprehensive hermeneutics from principle to concrete method.Scalia put forward the comprehensive interpretation methodology with the interpretation of the meaning as the core,which is completely different from the legal formalism that plays with words and is rigid and complacent.Scalia's textualism did not sit in the world of legal texts,but walked back and forth between legal texts and the real world.It is different from liberalism or formalism which overstep their power to replace or modify the legal text with subjective purposes.It is looking for the real intention of the constitutional text in the real world in the lines and text structure of the French text;At the same time,admit enacted law is not perfect,argues that gap and drawback of the text should be by the legislative purpose,legal principles,such as to fill,especially the use system of statutory interpretation to fill loopholes,complete legal justice of the whole puzzle,realize the interpreter lawmakers have expressed but not at the meaning of legal text directly presented fitting,and complete written by justice to the real justice.But at the same time,we should keep a respectful distance from the rules other than those in the enactment law,and give them to the legislature to exercise the functions of legislation,reform and abolishment.Chapter five discusses the deep problems behind the methodology of constitutional interpretation from the insufficiency and defect of Scalia's original meaning.Scalia's theory of constitutional interpretation is not perfect,and his theory still has many shortcomings.In the history of the United States,especially the development of the constitutionalism,the constitution of the United States is not only a set of contingency into the inevitability of the rising process of the constitution,with the help of the constitution growth and vigorous growth of peace,the constitutional government "power" and "rights constitutionalism" two kind of game,the way of the constitution principle and compromise made its lasting vitality.In the judicial process of the United States,the Supreme Court of the United States has become the organ to interpret the constitution and examine the violation of the constitution.Of the interpretation of the constitution of the United States,we can't ignore the historical tradition of common law making law,just as we cannot understand simple American democracy as mass democracy and fall into the trap of the "the most difficult problem",the constitution of the United States for more than two hundred years to perfect the process of continuously,must correct the distinction between the "same" and "change" wisdom,avoid blind in complacent.Even though Scalia is one of the most hermeneutic justices in the Anglo-American legal world up to now,though it has repeatedly claimed his hermeneutics is the most objective and fair,but it should not be neglected in the political preference and subjective preference will still be on the different interpretation of the constitution belongs to "Scalia" special mark,This is deeply problematic for liberals and conservatives alike,and it is an inescapable and unsolvable conundrum of interpretation.In constitutional interpretation,the specific terms and abstract terms to distinguish between the relativity of more different interpretations of personality and "maverick" reserved space and discretion,Scalia text willing to provide us with a comprehensive socialist constitution direction and path of hermeneutics,preliminary build up the principles and methods of the constitutional interpretation system.However,the overlapping and overlapping of Scalia's textual-originalism and his personal preference are inevitably reduced to "wavering textualism" and criticized by them for "saying one thing and doing another".Scalia text meaning as a kind of comprehensive socialist constitutional interpretation theory and practice is put forward,its value is to enrich the research of constitution interpretation not only,more lies in its initiative to recover in the common law countries explain tradition,and to seek a reasonable and authority of the constitution interpretation methodology for the effort.Political constitution from one country to the specification change the point of view of the constitution,state agencies in different countries,a national body which can be suitable for the country's constitutional interpretation authority,both closely related to the political construction,social culture in this country,with different historical opportunity in this country more closely related strategic choice in the process of constitutional interpretation authority of choice,this kind of inevitability and contingency resonance and interaction to form the country's constitutional interpretation authority and constitutional interpretation method.