"If he wasn't aware of it, he was intellectually qualified to be Supreme Court justice."
*Not* qualified, I meant to say. On Wed, Feb 24, 2016 at 5:14 PM, Tom Walker <[email protected]> wrote: > 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) > -- Cheers, Tom Walker (Sandwichman)
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