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作者 Langford, Catherine L
書名 A matter of interpretation: Justice Antonin Scalia's textualist approach to constitutional interpretation
國際標準書號 9780542297359
book jacket
說明 177 p
附註 Source: Dissertation Abstracts International, Volume: 66-09, Section: A, page: 3154
Adviser: J. Michael Hogan
Thesis (Ph.D.)--The Pennsylvania State University, 2005
This study investigates the rhetorical choices that Justice Antonin Scalia makes when crafting his judicial opinions. In his speeches and extra judicial writings Scalia advocates textualism, a form of constitutional interpretation that uses the plain meaning of the constitutional text in order to determine legal decisions. This study analyzes and evaluates Scalia's use of textual interpretation in three different areas of law: cruel and unusual punishment, religion law, and abortion. Cruel and unusual punishment represents a clear area of law, the religion law cases exemplify an area of law that does not have a plain meaning, and abortion is an area of law in which the Constitution is "silent." This analysis of Scalia's opinions reveals that Scalia is an opportunistic textualist. He does not apply textualism in the manner that he advocates its use in his speeches and law review articles. In his cruel and unusual punishment cases, Scalia alters the meaning of "cruel" to refer to the felony act of the criminal, not the punishment to be administered. In his religion law cases, he uses forms of interpretation other than textualism, valuing the intent of the founders and the historic practices of the people. Scalia's abortion cases serve as the only site in which his application (or lack thereof) of textualism is consistent with his advocacy of textualism. Scalia claims that since the Constitution does not consider the topic of abortion he does not have to adjudicate the matter. Throughout his opinions Scalia varies his use of constitutional interpretation in order to achieve the results he seeks. He does not apply the plain meaning of the constitutional text in order to determine a legal decision. This analysis of the judicial interpretation of Justice Antonin Scalia in three different areas of law demonstrates how one form of constitutional interpretation---textualism---is as rhetorical as any other form of interpretation. As a result, this work has the larger implication of encouraging further study into legal reasoning and legal arguments, and the role of the courts in determining the political reality of American democratic society
School code: 0176
Host Item Dissertation Abstracts International 66-09A
主題 Speech Communication
Alt Author The Pennsylvania State University
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