Alito
I'm surprised, but this actually sheds a little more insight into the Constitutional analysis of the man who may fill the most important voting seat in our Highest Court.
I agree it was a good analysis. This definitely further clarifies my view of Alito in a way I didn't expect. He and Scalia are going to have a fun time!
I agree it was a good analysis. This definitely further clarifies my view of Alito in a way I didn't expect. He and Scalia are going to have a fun time!
posted by Nik | 1:56 PM
2 Comments:
Don't you think the proper focus for inquiry into the relative jurisprudences of Scalia and Scalito is whence they claim to draw their legal authority? Scalia's singular focus is on ensuring that the Constitution is given the force and meaning as it had when written at the time of the framing. How convenient for him, since he can claim cover for imposing his conservative views on us all simply by saying, "That's how it was in 1789, if you don't like it, then just change it." This is clearly a fallacious argument. In many cases it requires Nino to perform Italian feats of historical magic, reading the minds of men some 200 years dead, yet he purports to cleave to a literalist, textualist approach to the law. Delving into history with his legal dowsing rod is no more fraught with danger or less susceptible to the imposition of Scalia's biases than what some of the other justices do in citing to foreign courts' decisions. (Scalia has criticized them for picking and choosing their favorite foreign courts, but his particular brand of historical inquiry necessarily involves his own filter on these matters, as well as having to view history through an extraordinarily dirty lens, since many of the writings and the records of the time are long gone.)
In Alito, I don't see the same kind of obsession with the past or denial that law, in fact, does change with morality, justice, and society's structure, as you have referred to in some of your postings.
True, we must look to the source of legal authority on which a justice chooses to rely. However, how do we determine what the true source is?--By looking at their actual analyses. Two justices, like Scalia and Alito, may both vocalize a strong support for maintaining the integrity of the original intention of the Constitution of our founding fathers. However, the application is much different between the two. You said it well when you referred to Scalia's biases--all justices have biases that will lead them to think, not just on hot issues like abortion, but on all issues that raise questions of Constitutional muster, differently. Merely stating that one is a "strict constructionist" or a "loose constructionst" does not simply make them so. Sure, Scalia uses some innovative analysis to support age-old law (like in relation to the Commerce Clause, for example), but looking to history may not always be such a bad idea. Alito, on the other hand, may rely on the same doctrine of Constitutional construction, but his biases on issues and on how to uphold the law resonate in a much different analysis. Maybe, Alito has learned from history whereas Scalia merely uses it? Who knows; I don't think it's safe to peg Alito yet--however, his analysis on the first amendment issue in the article to which I referred seems sound.
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