Scrat wrote:If I were, I would just let Acquiunk know whether I thought his (?) opinion had or lacked merit. Since I am not, I asked to ascertain what I might learn, both about Scalia's record AND about whether Acquiunk knew of facts to support his (?) statement.
A reasonable request, to be sure, but it tends to lose its quality as fair inquiry when framed in the manner of a challenge ("Can you cite for me a written decision of Scalia's that is not based on a strict interpretation of original intent?").
Scrat wrote:I appreciate your citation, and after reading the high points, conclude that it in no way shows Scalia ignoring or going against original intent. For one thing, both justices clearly agree that the letter of the Constitution itself does not instruct us sufficiently on the issue of what it means to be able to confront one's accusers, and so both justices are looking to historical legal precedent to discern how to handle this specific question. That they reach different conclusions does not mean that either has chosen to cast intent aside.
Well, I'm not quite sure why that matters. After all, if a justice disregards original intent or if he embraces it but gets it totally wrong, the result is still the same.
Scrat wrote:Acquiunk claimed that Scalia ignores the very question of original intent when it suits him.
Rather than poring over the corpus of Scalia's legal writings, I can only say that it is impossible for someone to have a consistent jurisprudence of original intent. To that extent,
Acquiunk is correct: Scalia
must ignore original intent, at least sometimes, because Scalia cannot consistently adhere to original intent.
The
Gore v. Bush case is a good example (although it is not a Scalia opinion, it is a per curiam opinion that Scalia joined). The majority relied, in large part, upon the due process and equal protection clauses of the Fifth and Fourteenth amendments. Yet it is quite clear that the framers of those amendments had no intention to apply either the concepts of "due process" or "equal protection" to the "right" to have one's vote counted equally. After all, the "one-man, one-vote" cases of the Warren court, such as
Reynolds v. Sims (cited in the opinion), invalidated state election laws that dated back to the time of the adoption of the Fourteenth Amendment. If the framers of the Fourteenth Amendment thought that the amendment's equal protection clause mandated a "one-man, one-vote" rule in the states, they would have been invalidating practically every state election law then in existence -- and, from the historical record, we know that's clearly not the case.
The court's reliance on the due process and equal protection clauses was, I believe, spurious. Furthermore, from an original intent perspective, it was manifestly unjustified. That Scalia endorsed this view indicates that, at least on occasion, he is willing to discard an original intent jurisprudence when it suits him.
EDIT: corrected a typo.
