Is Scalia developing an account of American political morality?

In his arguments against the use of "legislative history" in common law statutory decisions, Antonin Scalia is really arguing against evolutionary theories of constitutional interpretation and therefore normative accounts of constitutional rights. His formalist perspective requires that judges "have no authority to pursue broader purposes or write those new laws" (23), a constraint he treats as a democratic obligation. Scalia is worried about a normative and nondemocratic approach to judicial interpretation of statutory claims, "a government of laws, not of men" (17).


In my interpretation, Scalia wants us to value and take the constitution as the purpose it was made for. Scalia rejects conceptions that use other philosophies to try to determine a "common good", "evolutionists divide into as many camps as there are individual views of the good, the true, the beautiful…evolutionism is simply not a practicable constitutional philosophy" (45). He does this on account of consistent logical failure, but also because he believes that this goes against the inherent moral purpose of the law.

Scalia is not arguing that the textualists are devoted to the words of the law only, but also reveals a dimension of respect, reverence, and reason to honor the democratic processes that led to the Constitution where "context is everything" to create a "reasonable construction" of the way the "Constitution was originally understood" (38). Scalia rejects the problem of evolutionism because "the whole system of law is built up without the authority or interference of the [people]" (39). Textualism, on this reading, is less about the words themselves than about who gets to do the speaking, and for Scalia that answer is always the democratic process, never the judge.


However, I wonder what types of moral questions Scalia’s textualism requires answers to. For instance, if the Constitution was written by a small, unrepresentative group of “founders”, in what sense is textualism actually a democratic interpretive method? And, on connection to Alisdair MacIntyre’s After Virtue, I think there are clear parallels between the account of virtue, internal and external goods and institutions’ role in this. With that I would ask if Scalia's textualism is an attempt to protect the internal goods of legal practice from being corrupted by the external political pressures that evolutionary interpretation invites?

Comments

  1. Sophie JorgensonApril 16, 2026 at 9:57 AM

    Scalia defends textualism as a democratic method not because the original authors were perfectly representative, but because it respects promulgated text. Promulgated text is the only objective expression of the law - actually voted on and made public rather than the unexpressed intent of the lawgivers - that legally binds people in a democracy. Judges have a moral duty to protect the promulgated text, even if foolish. Scalia believes that if judges answer moral questions by morphing the Constitution to the needs of an age, they effectively destroy the Bill of Rights, whose purpose is to protect the individual against the majority. Furthermore, he holds that the formal amendment process can amend dated principles in a democratic way.

    On this note, I would argue that Scalia’s textualism is an attempt to protect the internal goods of the legal practice - impartiality, judgement, and lawyerly acumen (47) - from external political pressures. If the public believes the Constitution means whatever it ought to mean, they will stop looking for legal experts and start seeking legislative precedent to fit their personal interpretation. This is seen in appointments today, where judges are selected on the basis of their views and comparability with the majority.

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  2. Ellie HalabyApril 16, 2026 at 10:01 AM

    Georgia, I really liked your comment. While I understand your qualms with textualism as a basis for democracy, given the limited perspectives of the writers of our constitution, I wonder if an answer to this dilemma can be seen in a comparison with Brettschneider's Value Theory of Democracy. Scalia states: "but the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibits it now permits, and which it once permitted it now forbids; and that the key to that change is uncertain and unknowable" (45-46). Brettschneider points out that Democracy has the potential for harm, lest the basic values which he says can keep Democracy from facilitating value judgements which are antithetical to the very ideas of Democracy. Yes, it is true that the Constitution was written by a small, unrepresentative group of “founders,” but are there clear value judgments in the Constitution which may serve to provide a basis for textualism to be just? Are there clear virtues outlined in it that are still universalizable?

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