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Other Jurisdictions

In this essay, Judge Antonin Scalia argues that the common-law mindset, although appropriate in its place, is not suitable for statutory and constitutional interpretation. In exploring the neglected art of statutory interpretation, he urges judges to resist the temptation to use legislative intention and legislative history.

In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawyers meant, rather than by what the legislature actually promulgated. He argues that eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself.

Scalia proposes that the notion of an ever-changing Constitution is abandoned and that attention is paid to the Constitution's original meaning. Although not subscribing to the ""strict constitutionalism"" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly ""smuggle"" in new rights or deny old rights by using the Due Process Clause, for instance.