Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State

Abstract

NOTE: This is a revised version of a paper delivered at the 1990 Annual Meeting of the American Political Science Association. The author would like to thank Edward V. Heck for his comments on the original paper. The analysis draws its information as far as possible from Scalia's off-the-bench articles and speeches and his solo dissenting and concurring positions and avoids the use of opinions that might be regarded as the views of a mjority opinion coalition. The analysis also assumes consistency in his view over time, an assumption largely confirmed by close review of his public statements since 1970.

Antonin Scalia, William Brennan, and the Politics of Expression: A Study of Legal Violence and Repression

“…Using the Court as "the site of competition for monopoly of the right to determine the meaning of the law" (Bourdieu 1987, 817), attitudes like those of Scalia and Brennan so dominate the debate about the practice of rights that they cut out other normative positions and often do violence or repress those persons who express alternatives. 5 Antonin Scalia is an example of a judge attempting to isolate the judiciary as an alleged realm of reason free of policy bias (Brisbin 1990(Brisbin , 1991Kannar 1990Kannar , 1991Scalia 1987bScalia , 1989aScalia , 1989b. He is reluctant to let the practice of rights interfere with majoritarian choices of the personal freedoms contained in the Bill of Rights (Scalia 1987a;Strauss 1991).…”