Randy Koschnick: Judicial conservatives are much more likely to engage in strict constructionism, on the order of Antonin Scalia ...
Antonin Scalia: I am not a strict constructionist and no-one ought to be. . . . [Strict constructionism is] a degraded form of textualism that brings the whole philosophy into disrepute.
Randy Koschnick: I think it's also appropriate if you get into the analysis of ambiguous portions [of legislation] to look at the history behind that particular provision and to try to determine what the authors were trying to accomplish.
Antonin Scalia: On balance, [legislative history] has facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law.
"I caution you, his rhetoric does not match his conduct."
— Wisconsin Chief Justice Shirley Abrahamson
Strict Constructionist: "Congress shall make no law abridging the freedom of speech" means just that.
ReplyDeleteTextualist: "Congress shall make no law abridging the freedom of speech" means Congress can regulate speech because, plain language be damned, the Crown regulated speech and so did our Founders (to an extent), so Congress clearly can regulate speech.
Koschnick: Never been this confused since the junior prom.
"I caution you, his rhetoric does not match his conduct."
ReplyDeleteReminds me of her warning against Justices Bradley, Wilcox, and Crooks.
"But do not be fooled. This is the majority opinion's story, not the facts and reasoning of the circuit court," Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19 ¶108