I liked the Posner article because it confirmed my bias, which is precisely why a Scalia fan wouldn't like it. My bias is based on the suggestion in much political philosophy of the usefulness to the statesman, prince, legislator or courtier (or judge?) of duplicity (Machiavelli, Castiglione, Gracian... more recently Leo Strauss). And let's not forget Adam Smith:
> "And it is well that nature imposes upon us in this manner. It is this > deception which rouses and keeps in continual motion the industry of > mankind." -- Theory of Moral Sentiments > > Whether you agree with those sentiments or not, any reasonable reading of history will find copious amounts of creative (duplicitous) word-smithing in the drafting of documents in order to paper over what otherwise might be insurmountable disagreements. Textual originalism is thus an implausible legal theory on its face. Aside from the intentions of the authors, texts *could not* have meant what they are subsequently interpreted to have meant in terms of the literal historical usage of the words they contain. That is not how texts are MADE, any more than the framing of a wood-framed house is made by trees that grow 2"x4" branches, joined at right angles. Any podunk judge should know that legislation is drafted and framed by politicians under circumstances of contested meanings and that words are often deliberately deployed because of their ambiguity and/or *pretence* of precision. If Scalia was as smart and sophisticated as his admirers say, he would have been well aware of the political philosophy tradition of the "virtue of duplicity." If he wasn't aware of it, he was intellectually qualified to be Supreme Court justice. On Wed, Feb 24, 2016 at 12:48 PM, Michael Meeropol <[email protected]> wrote: > I am not at all interested in the fact that Scalia's reputation allegedly > came out fine despite Posner's arguments. > > Though I am not a lawyer and this is in fact the first review I have ever > read of one of Scalia's books, I found Posner's writing persuasive and in > fact accessible to my non-specialist's eyes. > > Since I can read it myself, I don't care what those who create reputations > think. Posner's arguments rang true. > > I again urge everyone to read it -- especially if they are like me, just > coming to this issue. > > (I might also add that I've seen a couple of TV interviews with Scalia in > which he makes very brief arguments in favor of his originalist views --- I > will have to admit to a certain prejudice but he seemed quite flip.) > > I'd be curious how he (Scalia) dispensed with over a hundred years of > received Supreme Court doctrine about the preamble to the 2nd Amendment --- > "A well-regulated militia ....etc. etc." --- in HELLER. Those are also > "original" words from the people who wrote the first 10 amendments. > > _______________________________________________ > pen-l mailing list > [email protected] > https://lists.csuchico.edu/mailman/listinfo/pen-l > > -- Cheers, Tom Walker (Sandwichman)
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