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Lucas Morel

Scalia v. Judicial Activism

"There is no controlling legal authority that says this was any violation of law," explained Vice President Al Gore, after admitting to soliciting campaign funds from a White House phone. Yet the 1939 Hatch Act prohibits government employees from raising campaign funds on government property. So why wasn't this a clear "violation of law"? Because "no controlling legal authority" said so.

What Gore meant by "controlling legal authority" was not a legislative act but a judicial opinion interpreting the relevant statute to determine if vice presidents were included. Unfortunately, when it comes to understanding one's rights and privileges in this country, Vice President Gore is not alone in relying upon a judge's ruling. Our reading of the law has become so dependent on federal court interpretations that most citizens are incapable of determining lawful activity--let alone their rights--without seeking a second opinion courtesy of a "controlling legal authority."

Today the law itself is no longer understood as the "controlling legal authority," and so applying the law becomes a matter of interpretation, which means a matter for courts to decide. But is this the proper role of federal courts?

A Matter of Interpretation, which comprises an essay gleaned from the Tanner Lectures delivered by Associate Justice Antonin Scalia, followed by four commentaries and a response by Scalia, provides a foray into this judicial thicket. Scalia plays true to arch-conservative form by espousing a "textual approach" to interpreting both statute and Constitution, embodying what others have called "judicial restraint." His interlocutors offer critiques ranging from qualified acceptance to patent refutation--all the more intriguing as the lot of them hail in one way or another from Harvard Yard.

But though their contributions reflect expertise from fields as disparate as American history and European civil law, key voices are missing from the discussion. This is especially relevant given the inclusion ...

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