Scalia's Replacement, Textualism, and Money in Politics

With the nomination of Neil Gorsuch as a Justice to the Supreme Court, the late Justice Scalia and his textualism are back in the news. It also brings back Scalia's decision that spending money to influence elections is a form of constitutionally protected free speech. In a five-four vote Scalia's position won, the Court to allow unlimited amounts of money to be spent by candidates for federal office.

The intellects of Gorsuch and Scalia are being praised, associated with what I think was Scalia's bloated approach to interpreting the constitution, called textualism. All justices read the constitution literally. "Congress shall make no law respecting an establishment of religion" means just that. Textualists are against allowing any notions distorting that meaning, like considering the intent of those who put those words into the Constitution.

We can agree that Congress legislates and that Supreme Court concerns itself with constitutionality, and the justices should apply as much discipline to their judgments as they can. But Scalia couldn't escape applying his own cultural biases, or the interpretation of history that he applied to his reasoning. I describe this in a May 2015 article.

Today little is being said about Gorsuch's position on the "money is speech" case, while many in the country would like to reduce the amount of money in politics, and the time that politicians spend drumming up money in order to stay in office.

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