I do not usually consider the arguments that would insist that a child face her abuser in court. Where I come from we call people who make such arguments (pardon my French), “assholes.” However, in his cold, calculating, yet inappropriately chatty tone, he makes a disturbingly valid point when it comes to judicial decision-making.
Put down the torches and pitchforks for a minute people. Scalia’s argument is that is wrong to think that the constitution is “a charter for judges to develop an evolving common law of freedom of speech, of privacy rights, [etc.] (Scalia, 17).” He instead wants judges to follow “the letter of the statute (Scalia, 20)” in order to create consistency and justice within the judicial system.
On the surface, this argument seems obvious and commonsensical. However, opponents of textualism bring up many valid counters when it comes to practical application of this theory of judicial interpretation. First off, such judicial interpretation doesn’t always lead to the result that society wants from the law. For example, from a textualist perspective, the confrontation clause of the constitution would require that a child be present in the courtroom with the abuser. Society, myself included, thinks this is absurd, and rightfully so. However, there is a remedy for such a wrong. The legislature is the branch of government well equipped to make and revise laws. It is their job to deal with the making of the law rather than the judicial branch.
Another perfectly logical argument against textualism is that everyone interprets language differently, and therefore there must be different interpretations of the law. This argument is strong because it accounts for why we choose to have 9 supreme court justices rather than one, and points out an inherent flaw in the construction of both laws and the English language. In the current state of the law and the English language, there is no plausible counterargument that makes logical sense. However, I would venture to say that Scalia is an idealist. He would like a uniform and agreed upon set of words with agreed upon definitions from which to create the law. Such a language would narrow the amount of interpretation required for the law, and would allow judges to avoid judicial law making.
Again, one might say such a language is impossible. But to say so would imply that human beings always see things differently, and can never agree upon anything. Obviously with the creation of governments, groups, and families, it is clear that humans can make some decisions together. Maybe the world is not black and white per say, but there are some basic human beliefs that can be agreed upon.
With this in mind, I think Scalia is not completely nut for suggesting that the law needs to be more uniform. The current method of judicial interpretation is not democratic, and judges act more like agents of a king rather than democratic leaders. In fact, our current judges are more like agents of a king that does not exist.
Scalia, Antonin, and Amy Gutmann. A Matter of Interpretation: Federal Courts and the Law : An Essay. Princeton, N.J.: Princeton UP, 1998. Print.