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04/16/2017

James Allan: Constitutional Interpretation, Democracy and Antonin Scalia
Michael Ramsey

James Allan (The University of Queensland - T.C. Beirne School of Law) has posted One of My Favourite Judges: Constitutional Interpretation, Democracy and Antonin Scalia (Br. J. Am. Leg. Studies 6(1) (2017)) on SSRN. Here is the abstract: 

This paper sets out why Antonin Scalia was a great judge. It looks at his approach to judging, to constitutional interpretation and to the interplay between strong judicial review and democratic decision-making.

Professor Allan is always an amusingly insightful commentator with a distinct perspective, and this paper doesn't disappoint.  For a little more context, here is the introduction (footnotes omitted):

It is best to start by making it clear that on some big issues I differed with the views of former U.S. Supreme Court Justice Antonin Scalia. For instance, I am a critic of bills of rights, be they of the entrenched, constitutionalized United States and Canadian varieties or of the statutory United Kingdom and New Zealand varieties. By contrast, Justice Antonin Scalia supported the U.S.-style bill of rights that he was regularly called upon to interpret.  Furthermore, I am an ‘Original Intended Meaning’ (‘OIM’) originalist, the sort that thinks it is authors’ intentions that count, that provide the legitimate and authoritative external standards that pointof-application interpreters ought to seek and that can constrain those interpreters in a way that ‘living tree/living Constitution’ and ‘moral’ interpretations never can. Justice Scalia rejected that sort of OIM originalism, sometimes quite sharply, in favor of searching for what a well-educated and knowledgeable person at the time would have taken the words to mean. Scalia’s version of originalism is known as ‘textualism’ or as ‘Original Public Meaning’ or ‘OPM’ or ‘new’ originalism.

I mention those differences, indeed will come back to them below, for the sake of providing the reader with a bit of perspective on what follows. Bear them in mind because in big picture terms in this article I come to praise Antonin Scalia, not to bury him. In fact Scalia was (and is) one of my favorite judges. As many readers will realize, that is not a sentiment that is or was widely held by law professors in the United States. And it was probably even less widely held by legal academics in my native Canada, or in the U.K., or in New Zealand, or in Australia. Justice Scalia was despised by many law professors in the Anglo-American world and his views were thoroughly rejected by more still. Not me though. As a law professor who has worked now for 11 years in Australia, and for a decade before that in New Zealand, with teaching sabbaticals in the U.S. and Canada, I am quite partial to the man, and to his jurisprudence. As I said, he is one of my favorite judges.

The goal of this article is to give you an idea of why that is, why this nonAmerican law professor who disagreed with him on a couple of big issues might nevertheless have that view. I will consider it a bonus if, for a reader or two, the good that Scalia did is not interred with his bones.