There are two different things here: textualism and Scalia. On the former, there is a nuanced version and a vulgar one (as with any intellectual concept). The nuanced version of textualism is basically what Scalia argues in his long-form writing and what Posner (brilliantly in my opinion) criticizes. This nuanced version simply says that the historical context of an amendment or statute, along with the intent of the framers should be considered while interpreting law. No leftist would have a problem with this. Vulgar texttualism, on the other hand, is stupid, and argues things like "corporations spending money on elections is just free speech".
I am not really that interested in debating the fine points of textualism; I will acknowledge that it is and interesting and worthy topic of study for legal scholars. Which brings us to Scalia who is a different topic completely and the one that I am really interested in. I understand completely that Scalia claimed to follow a textualist approach, and the man was certainly intelligent enough to understand the nuances in that legal theory. He is very capable of presenting articulate arguments on the theory and philosophy of textualism. The problem is: this does not seem to explain his judicial actions very well at all, and an laternate and much simpler theory does a much better job of explaining his actual actions. 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. This is the crux of the matter: Scalia was not an "imperfect human being". He was a misanthropic asshole who had some pathological hatred for gays, hippies and various other groups that rightwing assholes like him like to hate, and used his position on the Bench to harm these groups as much as he possibly could. If you take that as a working theory, you will see that it explains very well most of Judge Scalia's actions. Occam's Razor: the simplest explanation for a set of facts is the true one. QED. I understand that you do not share this conclusion, but that's a disagreement, not a misunderstanding on my part. > 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. > Of course not! Scalia had an obvious interest in tying the hands of *other* judges by appealing to restraint. And remember too that he got away with it pretty well. -raghu.
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