Scalia v. Scalia: Opportunistic Textualism in Constitutional Interpretation

177 Pages·2018·1.091 MB·English

by  Catherine L. Langford

SCALIA v. SCALIA
RHETORIC, LAW, AND THE HUMANITIES
Series Editors
Clarke Rountree
Editorial Advisory Board
A. Cheree Carlson
Kirsten K. Davis
Trevor Parry- Giles
Marouf Hasian Jr.
William Lewis
Francis J. Mootz III
Sean Patrick O’Rourke
Eileen A. Scallen
Edward Schiappa
Omar Swartz
Colin Starger
Gerald B. Wetlaufer
David Zarefsky
SCALIA v. SCALIA
Opportunistic Textualism in
Constitutional Interpretation
CATHERINE L. LANGFORD
The University of Alab ama Press
Tuscaloosa
The University of Alab ama Press
Tuscaloosa, Ala bama 35487- 0380
uapress.ua.edu
Copyright © 2017 by the University of Alab ama Press
All rights reserved.
Inquiries about reproducing material from this work should be addressed to the
University of Alab ama Press.
Typeface: Caslon
Cover image: Antonin Scalia, associate justice of the Supreme Court of the
United States, March 21, 2013; courtesy of the Collection of the Supreme Court
of the United States
Cover design: Michele Myatt Quinn
Library of Congress Cataloging-in-Publication Data
Names: Langford, Catherine L., 1974–, author.
Title: Scalia v. Scalia : opportunistic textualism in constitutional interpretation /
Catherine L. Langford.
Description: Tuscaloosa : The University of Alabama Press, 2018. | Series:
Rhetoric, law, and the humanities | Includes bibliographical references and index.
Identifiers: LCCN 2017020442| ISBN 9780817319700 (cloth) | ISBN
9780817391607 (e-book)
Subjects: LCSH: Scalia, Antonin. | Constitutional law—United States—
Philosophy. | Constitutional law—United States—Interpretation and
construction.
Classification: LCC KF8745.S33 L36 2018 | DDC 342.73001—dc23
LC record available at https://lccn.loc.gov/2017020442
To James Arnt Aune

Contents
Acknowledgments ix
Introduction 1
1. Textualism as a Response to the “Living” Constitution 9
2. Textualism in Scalia’s Speeches and Extrajudicial Writings 24
3. Interpreting a Clear Clause: The Eighth Amendment’s
Cruel and Unusual Punishments Clause 51
4. Interpreting Competing Clauses: Mediating Religion
between the Establishment and Free Exercise Clauses 72
5. When the Constitution Is Silent:
Rejecting the Right to an Abortion 97
Conclusion: Scalia’s Opportunistic Textualism 116
Notes 129
Bibliography 145
Index 155

Acknowledgments
The conceptual roots of this project—and my interest in the jurisprudence
of Antonin Scalia—began many, many years ago. During that time, sev-
eral scholars mentored me: James Arnt Aune, Leroy Dorsey, J. Michael
Hogan, John Murphy, and Vanessa Beasley. These scholars cut across time
and institutions. Jim Aune taught me that I could, and should, study what I
loved. Leroy Dorsey taught me that intellectual pursuits could be fun. Mike
Hogan taught me to persevere and to improve. John Murphy convinced
me to duct- tape myself to my chair. Vanessa Beasley modeled what it looks
like to be a woman who is a successful scholar, teacher, mentor, commu-
nity member, and family person. And when Jim Aune passed away, Miriam
Aune stepped in to encourage me to keep going.
I was lucky enough to have been extended a Faculty Development Leave
opportunity from Texas Tech University in 2013 to complete a first draft of
this manuscript. I am especially grateful to the graduate students who helped
me collect data to analyze during that leave, particularly Andrew Potter and
Amanda Schwertner. I am also grateful to the numerous graduate students
who participated in my His tori cal Critical Methods seminar, for listening
to, and providing me feedback on, my ideas. My graduate students have
demonstrated a generosity of time, intellect, and encouragement. Some of
my advisees, in particular, have expressed an interest in my work on Scalia,
regardless of their place on the pol iti cal spectrum: Prairie Endres Par nell,
Kevin Garner, Jessica Reynolds, Kyle Dennis, Brendan O’Grady, Jared
Bress ler, David Braz, Kathryn Starkey, Alyssa Fiebrantz, Lauran Schaefer,
Kevin Gene Thompson, Jennifer Duckworth, Austin Tyson, JT Seymore,