Implication and tradition

[Eugene Volokh]

    I take it that Scalia would say that he's not a pure textualist:  He
focuses on text as explicated by the evidence of the original meaning, and
where that is missing, tradition.  He discusses this explicitly in various
cases, such as Rutan v. Republican Party, City of Boerne, 44 Liquormart, and
I believe Texas Monthly v. Bullock.

    Scalia believes that the original meaning and the tradition point
towards recognizing a state sovereign immunity principle -- and of course
he's not alone in this belief, cf., e.g., Hans v. Louisiana, though others
argue that he has misread the original meaning and the tradition -- plus the
principle in Printz and the like; and that the text and the original meaning
(less so as to tradition, I think) point towards recognizing limits on
Congressional power under the Commerce Clause and section 5 of the
Fourteenth Amendment.  I suspect that he believes there is no warrant in the
original meaning or tradition for recognizing private rights of action under
the Constitution.  (I'm not knowledgeable enough about the debate on implied
statutory rights of action to speak to that.)

    One can of course criticize his interpretive method on its face; and one
can argue that he has applied this method inconsistently (much as some fault
Justice Brennan for appealing to original meaning and tradition in
Establishment Clause cases while rejecting them in, say, death penalty
cases).  But I don't think that his willingness to recognize nontextual
theories in some contexts but not in others is itself proof of Scalia's
inconsistency, because he has never claimed to be a pure textualist.

    Eugene
  -----Original Message-----
  From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Malla Pollack
  Sent: Tuesday, November 27, 2001 11:40 AM
  To: CONLAWPROF at listserv.ucla.edu
  Subject: Please explain Scalia


  As a "very-liberal," I would appreciate help to prevent me from
overlooking a rationale for Scalia's concurrence of today in Correctional
Svcs Corp v. Malesko (No. 00-860, slip op issued Nov. 27, 2001).  Scalia
(joined by Thomas) concurs in the 5-4 refusal by the Sp Ct to extend a
Bivens COA to a private corporation running a federal prison.  Scalia points
out that the Court abandoned the power to imply private COAs under statutes
in Alexander v. Sandoval, 532 U.S. 275, 287 (2001).  He then says:  "There
is even greater reason to abandon it in the constitutional field, since an
'implication' imagined in the Constitution can presumably not even be
repudiated by Congress."
      My problems is finding a non-political-agenda coherent way to square
this statement with his willingness to imply into the Constitution limits on
federal power over the states--both in the Sovereign immunity cases and
(even harder for me) the Reconstruction Amendment cases.  Can anyone help?
Perhaps I am just not familiar enough with the cases or the way Scalia's own
opinions (as opposed to the Court's) dealt with the fine points.
      Help anyone?

  Malla Pollack
  Northern Illinois Univ., College of Law
  DeKalb, Illinois 60115
  815-753-1160; (fax) 815-753-9499
  mallapollack at niu.edu
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