June 16, 2005

Jason Samuel: Scalia on Due Process Clause

by Guest Contributor

A conversation I had with a classmate called for me to quote this passage from Justice Scalia's book, A Matter of Interpretation: Federal Courts and the Law. I didn't want to waste what I copied on just our IM conversation, so I decided to post it here. I welcome comments.

But while the good textualist is not a literalist, neither is he a nihist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible. My favorite example of a departure from text...pertains to the Due Process Clause...which says that no person shall 'be deprived of life, liberty, or property without due process of law.' It has been interpreted to prevent the government from taking away certain liberties beyond those, such as freedom of speech and of religion, that are specifically named in the Constitution. . . Well, it may or may not be a good thing to guarantee additional liberties, but the Due Process Clause quite obviously does not bear that interpretation. By its inescapable terms, it guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require---notably, a validly enacted law and a fair trial. To say otherwise is to abandon textualism and to render democratically adopted texts mere springboards for judicial lawmaking.
June 16, 2005 12:51 AM | TrackBack

This reminds me of the law of the old West: "Let's give him a fair trial, and then hang him." Witness the recent Supreme Court death cases.

Posted by: Shag from Brookline at June 17, 2005 07:21 AM
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