Jurists and the Legal Model¶
Note
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Justices Scalia, Hugo Black, Rehnquist and Thomas are notable proponents of the legal model.
Justice Scalia, claims that he “treats the Constitution like a statute, giving the Constitution the meaning that its words were understood to bear at the time they were promulgated [Scalia, 2003]. Precedent, and general rules in his mind must be the source of law, with the Supreme law being the Constitution [Scalia, 2003]. General rules devoid of “textual anchor” or at the least an “established social norm” to Justice Scalia and proponents of the Legal mode appear “uncomfortably like legislation [Scalia, 2003].”
Hugo Black, according to Davis, “followed the plain meaning of the words and the intent of the framers ([Davis, 2014] , 23-24)”; and “with a near religious fervor for most of his tenure on the Court, fought and argued to base his and the Court’s constitutional interpretation on the literal text itself ([Ball et al., 1992], 318-319).” Justice Black’s jurisprudence can be said to have been interpreted “in accordance with the intent of the Framers and the history of the clause or amendment ([Ball et al., 1992], 318-319).”
Like, the liberal Justice Black, Justice Rehnquist also claimed to base his behavior upon precedent and text. Davis states, that Rehnquist’s jurisprudence cannot be explained by his conservative ideology, but by legal philosophy. He was first and foremost a legal positivist, who believed that “lawmaking is a prerogative of legislators rather than judges… In an attempt to adhere to the law as an empirical fact, a positivist jurist limits his or her interpretation of the Constitution to the meaning of the words or text or intent of its authors ([Davis, 2014] , 24).”
Among the current members of the Bench, Justice Thomas “seeks to base his opinions on the original intent of the Framers of the Constitutions, Bill of Rights, and subsequent constitutional amendments ([Smith, 1997], 9). The support for his opinions (and dissents for that matter) reference the primacy of the Founder’s intentions which to him dictate the outcome of cases.