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  •  Posner teed off on the Scalia logic (2+ / 0-)
    Recommended by:
    Sharon Wraight, Old Sailor

    The Incoherence of Antonin Scalia
    BY RICHARD A. POSNER (a conservative 7th  Circuit appeals court judge)

    This is funny stuff. It's actually a book review of:
    Reading Law: The Interpretation of Legal Texts
    By Antonin Scalia and Bryan A. Garner

    Here's what got Posner going, heh heh...

    Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne) that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.
    Much of the article covers the Heller decision. Where is Mr. Voimakis when we want him?
    Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

    Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.”

    [...] Judges are not competent historians.

    I would very much like to meet Mr. Posner. Again, HE IS A CONSERVATIVE.
    OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism.
    And here's the part where Posner is much more magnamimous than Scalia towards international sandwiches:
    Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word “sandwiches” in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.
    Last excerpt: here Judge Posner gets on a roll and bashes Scalia on behalf of gay couples:
    Scalia and Garner denounce acourt that held, in a case called Braschi v. Stahl Associates Co., that the word “family” in a New York rent-control statute that prohibited a landlord from dispossessing a “member of the deceased tenant’s family who has been living with the tenant” included “a cohabiting nonrelative who had an emotional commitment to the deceased tenant.” The word “family” was undefined in the statute. The case may be right or wrong; what is disturbing is Scalia and Garner’s failure to mention that it was a homosexual couple at a time when homosexual marriage was not recognized in New York, and that the opinion states that the two men had been living together just like spouses and had been accepted as such by their families.
    Sharon Wraight, thanks for the thread, and sorry for the hijack. But you mentioned my favorite conservative, Chicago's Judge Posner.

    _______________________________________________________________________________________ It seems to me that we humans take turns being dummies.

    by reasonablegunsplz on Sun Feb 23, 2014 at 03:24:08 PM PST

    [ Parent ]

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