This doesn't address my point, which is about the duplicity of the "original texts" that are being interpreted. If Scalia is looking for something that was never there in the first place, how does he know when he finds it?
On Thu, Feb 25, 2016 at 2:31 PM, Shemano, David B. < [email protected]> wrote: > This is simply wrong. I am an advocate of noble lies as much as anybody. > Obama saying he was against same sex marriage in 2008 was masterful. But > the philosophical issue of legal interpretation (or interpretation more > generally) is not a matter of duplicity to effectuate political goals. > Views of interpretation may certainly have political consequence, but that > is far different than saying a view of interpretation is an intentional > façade to facilitate political goals. Scalia is explicit that his > philosophy – textualism – is a restraint on the discretion of the judge, > including a “conservative” judge. The fact that Scalia, an actual > imperfect human being, arguably (and I stress arguably) occasionally failed > his own test is (a) not evidence of duplicity, and (b) not evidence the > philosophy is wrong. The philosophy succeeds or fails on its own merits. > If Scalia was motivated to advance conservative goals without restraint, > then he would presumably be better off pretending to agree philosophically > with the liberal judges, who use textualism when it supports the result > they want to reach, but disregard it when they don’t. This goes back to my > very first post – if you reject originalism, then you are really rejecting > judicial restraint more generally, and so if you reject judicial restraint > more generally, on what basis can you credibly criticize Scalia on* > judicial* grounds (the opinion varied from textualism to reach a goal) > as opposed to *political* grounds (you simply don’t like the result of > his decisions)? > > > > But again, if you want to take the position that the concept of judicial > restraint is a fantasy, that the exercise of judicial power is no different > than the exercise of executive or legislative power, and further that any > judge that thinks he is exercising restraint is fooling himself, that is a > legitimate philosophical position, but understand Scalia disagrees with > you, and he disagrees not because he doesn’t understand you, but because he > understands you and still disagrees with you. > > > > David Shemano > > > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *raghu > *Sent:* Thursday, February 25, 2016 8:07 AM > *To:* Progressive Economics > *Subject:* Re: [Pen-l] Posner on Scalia via David Shemano > > > > On Wed, Feb 24, 2016 at 7:14 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 > > > > Indeed and I'd also point out that there is a meta aspect to this: Shemano > (and Scalia) are/were employing precisely this kind of duplicity in making > the argument for textualism as a coherent and objective legal theory. > > -raghu. > > > > > > > ____________________________________________________ > > Information contained in this e-mail transmission may be privileged, > confidential and covered by the Electronic Communications Privacy Act, 18 > U.S.C. Sections 2510-2521. > > If you are not the intended recipient, do not read, distribute, or > reproduce this transmission. > > If you have received this e-mail transmission in error, please notify us > immediately of the error by return email and please delete the message from > your system. > > Pursuant to requirements related to practice before the U. S. Internal > Revenue Service, any tax advice contained in this communication (including > any attachments) is not intended to be used, and cannot be used, for > purposes of (i) avoiding penalties imposed under the U. S. Internal Revenue > Code or (ii) promoting, marketing or recommending to another person any > tax-related matter. > > Thank you in advance for your cooperation. > > Robins Kaplan LLP > http://www.robinskaplan.com > ____________________________________________________ > > _______________________________________________ > pen-l mailing list > [email protected] > https://lists.csuchico.edu/mailman/listinfo/pen-l > > -- Cheers, Tom Walker (Sandwichman)
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