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- Ken Starr -- Former Federal Judge and U.S. Solicitor General
Until 1986, most conservative lawyers favored following the original intentions of the Framers of the Constitution rather than the original public meaning of the text of the laws they wrote. Justice Scalia changed all of that with a brilliant speech given at the Justice Department just days before he was nominated to the Supreme Court. Justice Scalia argued that it is the laws that Congress makes, and not the legislative history that accompanies them, that the courts must follow. He argued similarly in constitutional cases that we are bound by the texts that our dead ancestors enacted and not by their unenacted intentions and policy views. Since 1986, Justice Scalia's view has so thoroughly swept the field that few proponents of original intention and of following legislative history remain. The triumph of text over intent and over legislative history is one of Justice Scalia's legacies.
This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.
Showcase Panel I: Justice Scalia: Text Over Intent and the Demise of Legislative History
9:45 a.m. – 11:30 a.m.
The Mayflower Hotel
The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today.
In Mata v. Lynch, the Court overturned the Fifth Circuit’s refusal to hear an appeal of the Board of Immigration Appeals’ decision to dismissal of Noel Reyes Mata’s request to appeal his deportation to Mexico, holding that the Fifth Circuit erred in declining to take jurisdiction over Mr. Mata’s appeal.
In Kerry v. Din, the Court overturned the Ninth Circuit’s ruling that petitioner Fauzia Din was denied constitutional due process protections when her husband, Kanishka Berashk, a resident citizen of Afghanistan and a former civil servant in the Taliban regime, was denied an immigration visa to the United States on the grounds that he was inadmissable under American law that excludes aliens who have engaged in “[t]errorist activities,” and when Mrs. Din and Mr. Berashk were subsequently denied review of their appeal in U.S. District Court. The Court held that the U.S. Government’s long practice of regulating immigration, which has included erecting serious impediments to a person’s ability to bring a spouse into the United States, precludes Mrs. Din’s claim.
Our expert, Chapman University School of Law Prof. John C. Eastman, analyzed these opinions and offered his perspectives of their impact on immigration policy.
In their new book, The Constitution: An Introduction, constitutional scholar Michael Stokes Paulsen and his son, Luke Paulsen, write a lively modern primer on the U.S. Constitution. Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. In a review published in Engage, the Law Journal of the Federalist Society, U.S. Supreme Court Justice Samuel Alito praises the book’s unique format: “Professor Paulsen and his son began this collaboration when Luke was in high school and continued throughout his college years at Princeton. It is easy to imagine this process as a conversation between a father, who has been immersed in the study of the Constitution for his entire adult life, and a bright son, who brings a new perspective and challenges the father to explain and defend.” Justice Alito goes on to say that the book “invites readers to become personally engaged in the discussion of the Constitution that began in the fall of 1787 when the citizens of the states debated ratification.” In this spirit of debate, both of the authors joined University of Richmond School of Law Professor Kevin Walsh and answered audience questions on a Teleforum conference call.