Justice Scalia had this interview on PBS last night.
Even those who would be textualists don’t know how to do it very well because it has not been taught in law schools.
Of course, you know, none of them is absolute. This particular canon looks in this direction. Another canon may look in the other direction. And the trick for a judge is to see where the balance lies. It’s like a murder mystery. There are clues pointing one way, pointing another way. Which clues are the most persuasive, that’s what the canons are all about.
Scalia offers the well-worn refrain that the Amendment process is proof that the Constitution was not meant to evolve, though his answer is more Breyer Active Liberty than he would care to admit, with its focus on “principles.”
It doesn’t have to evolve over time.
If it was up to the courts to make it evolve over time, there wouldn’t have been a provision for amendment. It contains a provision of amendment precisely because the framers understood that they may find some provisions in the future are not good and additional provisions are needed. . . .
So it is not that I think the Constitution cannot be applied to new phenomena, such as television, such as telephones, as far as free speech is concerned.
Of course it can. You have to figure out how those principles apply to new phenomena. But as to the phenomena that existed at the time, that is — this is what originalists would consist of — with respect to those phenomena, it doesn’t change.
MARGARET WARNER: But, I mean, the power to tax is in the Constitution.
ANTONIN SCALIA: Oh, the issue is not whether Congress has the power to tax. The issue is whether, in this particular law, Congress was exercising the power to tax.
And in all of our prior cases, we said that, even if you call it a tax, if it’s being imposed for the violation of a law, it’s a penalty. And this one wasn’t even called a tax. It was called a penalty.
H/T My Mom, who frantically called me yesterday to tell me that Scalia was on Channel 13.