Passive Aggressive: Scalia and Garner on Interpretation
41 Boundary 2 227 (2014)
20 Pages Posted: 9 Sep 2014 Last revised: 5 Dec 2017
Date Written: August 11, 2014
Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia.
Keywords: Antonin Scalia, Bryan Garner, Constitutional Law, Originalism
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