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.
- Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
- Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law
- Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law
- Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center
- Moderator: Hon. Sandra Segal Ikuta, U.S. Court of Appeals, Ninth Circuit
The Mayflower Hotel