I think Scalia's argument is more along the lines that ignoring the words in favor of intent is arbitrary. If the actual words are clear, Scalia goes with those words. If the words are unclear, though, Scalia resorts first to precedent - stare decisis - but where there is no precedent, Scalia has been known to decide based on intent as well.Coito ergo sum wrote:Incorrect. To apply the intent of the legislature, whatever that may be, as determinative of what words mean in the text of a law is, as Scalia shows, a pathway to arbitrary application of laws to mean whatever we want them to mean.
Well, there's precedent, which Scalia and Thomas use, and others give lip service to. There's whatever the justice thinks would make for a better world for everyone, which seems to be what Kennedy thinks he's doing. There's current trends in international law, which Breyer, Ginsburg, Sotomayer, and Kagan like to use when it suits their purposes. Then there's assuming the government is right just because it's the government, which Roberts, Alito, and Breyer seem to default to.Seth wrote:Other than the plain meaning of the words, and the legislative intent of the authors, what other metric do you suggest is to be used to determine what the meaning of the words in a law (or Constitution) are?