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Tribe refers to what Ronald Dworkin says later in the book. Dworkin holds that everyone is an originalist now but that they are not seeking what the lawmakers expected but what they meant to say in their law, suggesting perhaps that they may not be writing laws as clearly as could be or that the vagaries of language often make it difficult to do so without some form of originalist mind set. Tribe points out that what both originalists and textual critics are doing is to try to determine what is intended over what is expected, meaning that a law could be written to say one thing but would have unintended consequences just the same. Where Tribe differs is in the fact that he does not believe it is possible to discover which provisions are which by a close reading of the text or by legislative history. Tribe also does not agree that the meaning can be obvious to any reader o that the meaning has to be fixed for all time by a given interpretation. Instead, he sees some provisions "as generative constitutional principles broader or deeper than their specific terms might at first suggest" (Scalia 71).
The issue then becomes how to decide which these are. Tribe agrees that this is a difficult task. He believes both Scalia and Dworkin err when they state "how various people in fact understood particular phrases a century or two ago" (Scalia 72). For Tribe, it is often necessary to look outside the Constitution itself for an answer, and though the written text has to be a beginning point, which of necessity also means that the meaning of the Constitution has to evolve in response to outside influence and changing circumstances. Tribe recognizes that neither he nor Scalia have a way of determining beforehand which provision in the Constitution have a set meaning and which can be interpreted according to changing circumstances.
Mary Ann Glendon states that she is a comparativist. In her analysis, she compares constitutional interpretation in different countries and over time, and she comes down more strongly on the side of common-law interpretation in part because it reflects a "legal culture widely shared by lawyers and judges with diverse personal backgrounds, economic view, and political sympathies" (Scalia 112). She says that those following Scalia's views will not be able to make use of certain techniques of interpretation that work well in other states and that could serve well here if strict textualism were not adopted.
Dworkin points out that there is a form of original intent in Scalia's view even if he thinks there is not, and that is semantic intention, or what the writer meant the words to mean. Clearly, Scalia is assuming that this is self-evident, but just as clearly, it is not or there would be no differences in interpretation over the last two centuries, as certainly there have been. It would appear that no matter what form of interpretation is adopted, at some point it is necessary to ask what someone meant by the law as written, whether based on legislative history, semantic interpretation, precedent, or some other specific source.
The degree of deference given to precedent also differs from place to place. In the United States, this often devolves into an argument over constitutional interpretation on the basis of evolution vs. original intent. United States Supreme Court Associate Justice William Brennan discusses the role of the courts and considers the issue of original intent as a philosophy of judicial interpretation and as referring to the most doctrinaire form of this view, which holds that today's Justices must discern precisely what the Framers thought about the issue being decided and follow that intention in resolving the case, which Brennan sees as "little more than arrogance cloaked as humility" (Breennan 4).
Brennan means that it is arrogant to assume we can determine the intentions of the Framers from our vantage point, and an examination of records from the time of the writing of the Constitution usually shows only that there were disagreements among the Framers. Brennan says that the doctrine of original intent is a form of "facile historicism" that is justified by proponents "as a depoliticization of the judiciary" (Brennan 5). However, Brennan notes that this form of interpretation is itself no more than a political decision.
Another argument proponents use is that this is a democratic nation and that "substantive value choices should by and large be left" to elected representatives (Brennan 5):
This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government. Yet it has similar consequences for the nature of proper judicial interpretation. (Brennan 5)
Precedent obtains in general court decisions as judges look to what has been done in the past and to how the law has been interpreted and then apply the law on that basis. For all countries using this method, this gives the law a sense of continuity and finality that is itself a positive social policy.
Chief Justice Rehnquist was an advocate for the idea of original intent, though he often refined his argument on the issue far more carefully than many who hold that view.
In his book the Supreme Court, Rehnquist shows a propensity for analyzing the process and offers little ideological justification for any specific approach to decision making at all. His writings on specific cases show some of what he believed about the way cases should be decided, and often he seems caught between the requirements of both an application of some form of original intent and the need for respect for stare decisis at the same time. His actions with reference to probably the most contentious decision of our time, Roe v. Wade, shows the tension between the two ideas.
Many felt that at the first would be an opportunity, the more conservative Supreme Court under Rehnquist would overturn the Roe v. Wade decision, on the assumption that a conservative Court would want to do just that. Yet, the Court did not overturn Roe v. Wade at all, and indeed affirmed it. Only Justice Scalia wanted to reconsider and explicitly overrule Roe v. Wade when considering the issue in Webster. The Court as a whole, however, avoided doing this by deciding the case in as narrow a manner as possible. Chief Justice Rehnquist wrote the Webster decision and so was key in this process. This decision does not address the issue of abortion itself directly but rather confines itself to the issue of whether the state can compel its medical employees not to perform certain procedures and whether the state can refuse to pay for certain procedures. Rehnquist cited earlier cases that had rejected the claim that the unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. These cases had also held that the State could use public facilities and staff to encourage childbirth over abortion without being seen as placing a governmental obstacle in the path of a woman choosing to have an abortion. The State had also been held not to be required to commit any resources to facilitating abortions.
The Missouri Act involved in the Webster decision contained three provisions relating to encouraging or counseling a woman to have an abortion. The first stated that no public funds could be used for this purpose. The second stated that public employees, within the scope of their employment, could not engage in speech promoting abortion. The third stated that such speech in public facilities was also prohibited. The Court of Appeals had held all three provisions to be unconstitutionally vague. The Supreme Court rejected this holding. In part, Rehnquist used Roe v. Wade itself in this decision, noting that Roe v. Wade had recognized that the State had important and legitimate interests in protecting maternal health and in the potentiality of human life, and Rehnquist sees the provisions of the Missouri statute as acceptable exercises of these same state interests. Rehnquist also finds that the Missouri case differs in important ways from Roe, which was why the Court declined to use it as a means of overturning Roe. For one thing, the Missouri statute did not conflict with the trimester system set up by Roe, since the statute determined that viability is the point at which state interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute had outlawed all abortions unless the mother's life was at stake.
Justice Scalia, however, wrote in his concurring (in part) opinion that the entire abortion question was a political and not a judicial one. He saw the Webster decision as an exercise in statesmanship that put off a decision he felt the Court would one day have to make regarding the overturning of Roe. He also felt that the Court's refusal to take this step opened it to continued public pressure from both sides, the sort of public…[continue]
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