From Slate: Antonin Scalia Brought the Court to Him: His transformational tenure made originalism the rule by which every justice had to live.

Originalism - textualism, what the plain meaning of the words used in the Constitution were at the time they were written -  - is one of the many methods a member of the court can use to determine the meaning of constitutional language.

- Click here for the article.

His almost 30-year tenure at the high court was transformational; perhaps most striking was his advocacy for originalism (or, more correctly, textualism)—a mode of constitutional interpretation that focused on the interpretation of the law by looking scrupulously to the intent of the legislators who wrote the law. Under his leadership, the court went from an institution often divided on the best way of interpreting the Constitution to a court that often deferred completely to Scalia’s textualist preferences. So profound was his originalist influence on his colleagues that when the court decided United States v. Heller in 2008, even the liberal dissenters approached the D.C. gun laws through the lens of originalism, leading many commentators to observe that Scalia had won: “We are all originalists now.”

There is no doubt that Scalia was a hard-line conservative—a juggernaut in reversing the Warren court revolution—he led the court into culture war battles over race, abortion, religion, the death penalty, and gay rights. But Scalia was also an occasionally surprising hard-liner when it came to protecting the rights of criminal defendants who could not, for instance, challenge witnesses testifying against them or the privacy rights of those who objected to the use of thermal imaging in searches of their homes.

Is a fish a tangible object?

A couple 2305 students have proposed looking at Yates v United States.

- Click here for Scotusblog's page on the case.

The case involves a creative use of a provision that stems from the Sarbanes-Oxley Act of 2002 (AKA the "Public Company Accounting Reform and Investor Protection Act" - in the Senate - and "Corporate and Auditing Accountability and Responsibility Act" - in the House), which was passed in the wake of the co-scandals of Enron and Worldcom.

Fro a refresher on each, here are some links to the relevant Wikipedia pages:

- Sarbanes-Oxley Act.
- Enron.
- Worldcom.

The act made it a crime - punishable by a prison term of up to 20 years if someone ""knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence" a federal investigation."

The key phrase is "tangible object."

The question the court faced was whether this provision - which was intended to apply to corporate records, could be applicable to fish. A commercial fisherman was being inspected by a federal agent and he instructed the crew to throw over undersized fish. The court was asked to consider whether doing so violated the act.

The question the court wrestled with was what "tangible object" meant. Did the phrase refer to an object that could contain information (like accounting records) or something you could touch - like a . . . . fish? The narrowly ruled that it referred to the former. The case against the fisherman was overturned - thrown overboard.

For the student's looking at this case, the question will be what angle you propose taking.

New Textualism

For decades, conservatives have embraced an originalist approach to the constitution. Either the intent or the text of the Constitution should be the guiding force determining constitutional meaning. Liberals are apparently embracing originalism now and calling it "New Textualism."

Jeffrey Rosen comments on the development, and suggests that it would have helped the administration's argument supporting the individual mandate before the Supreme Court, but at a cost:

. . . the New Textualists—insist that arguments grounded in constitutional text and history can be deployed just as effectively to support liberal policies as conservative ones.

So far, the New Textualists have an impressive track record of winning over conservative justices and judges. But their ideas are being strenuously resisted by the liberal legal establishment—both by administration lawyers like Verrilli and an older generation of scholars, who fear their approach will ultimately lead to the downfall of landmark precedents, including Roe v. Wade.

More commentary on this approach:

- The Promise of New Textualism.
- The Case for New Textualism.
- Old Dictionaries and New Textualists.
- Laying Claim to the Constitution.

Regarding Originalism

The NYT has a terrific piece on the various issues associated with originalism and highlights Antonin Scalia's pragmatic approach to using the doctrine in deciding how to rule on cases before him. Best quote: "I am an originalist. I am a textualist. I am not a nut.”

In both 2301 and 2302 we will dig into controversies associated with how the constitution ought to be interpreted. Consider this required reading.

Update: Linda Greehouse adds to the discussion.

What's in a Word?

Plenty, especially if the word is "navigable," and it is used in legislation to state what waters the EPA can regulate.

A narrow definition of navigable by the Supreme Court (in two cases: Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers in 2001 and Rapanos v. United States in 2006) has, according to the New York Times, led to increased levels of water pollution in the country. The majority stuck to what it considered to be the plain meaning of the text, despite arguments by others that that negated the intent of the act itself.

Congress is currently determining whether to revise the Clean Water Act to restore the intended broad intent of the law.