Justice Scalia Textualism

Of the many forms of interpretative constitutional theory that exist, Justice Scalia sees himself as a textualist. He states: “Textualism should not be confused with so-called strict constructionism… [a] text should be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that if fairly means” (23). Drawing from a quote from Chief Justice Marshall in McCulloch v. Maryland, Scalia hints at the notion that if the constitution were to explicitly say all of the powers it allowed and the means by “which they may be carried into execution” then it would be tediously long and incomprehensible to the human mind; therefore one should not expect nit-picking detail and afford to the constitution, with regards to its use of words and phrases, an expansive interpretation so long as the language can bear it.

In his distinction between strict constructionism and reasonable constructionism (textualism) Scalia references the first amendment’s forbidding of the abridgement of “the freedom of speech”. He

United States. Within this case there was a statue that stipulated an increase in jail time if the defendant in question used a fire-arm “during and in relation to...a drug trafficking crime” (23). Within this case the defendant sought to buy cocaine and his currency was the fire-arm in question. The court held (6-3) “that the defendant was subject to the increased penalty”. Justice Scalia dissented because he argued that the statute in question should be interpreted to understand what guns are normally used for: as a weapon. Scalia rejected this literal interpretation of the statute because it is deceptive in nature: “when you ask someone, “Do you use a cane?” you are not inquiring whether [they have] hung [their] grandfather’s antique cane as a decoration in the