WASHINGTON—One of the earliest influences on Antonin Scalia was a Sicilian-born father who applied a particular philosophy to the scholarly task of translating poems from Italian: Learn the original poet’s point-of-view, and don’t muck it up with new ideas.
A biographer of the just-deceased Supreme Court justice cites Scalia’s father as one of several sources for the philosophy that helped Scalia shape American legal history.
The biography, “Scalia: A Court of One,” quotes Salvatore Eugene Scalia, a scholar of romance languages, warning fellow translators against covering old meaning in shiny linguistic paint.
“[The translator’s] most eminent quality is the rare faculty of reproducing the lyric vision of a poet,” the elder Scalia is quoted as writing.
“He must always seek to transfer bodily the image from one language into another without sacrifice of glow or warmth, and not attempt to reconstruct it with dictionary in hand.”
It’s like a manifesto for judicial originalism. Scalia brought that legal philosophy from the margins to the forefront of American civic life, based on the belief that modern-day judges should hew as closely to the U.S. Constitution as it would have been understood by the public in the 18th century.
Biographer Bruce Murphy cites several other influences on the judge besides his dad, including his deep religious faith, and frustration over the 1960s modernizing and abandoment of Latin-language mass by the Catholic Church.
Finally, as an editor of the Harvard Law Review in the 1950s, Scalia was exposed to emerging conservative writers like William F. Buckley and legal thinkers like Herbert Wechsler who promoted judicial self-restraint.
Canada’s living-tree metaphor
An expert on Canada’s judiciary says that approach is mostly shunned north of the border. Emmett Macfarlane says the quasi-consensus in Canadian law schools and courtrooms is that legal texts should be reinterpreted to fit the times.
“You'd never have a Canadian Supreme Court judge refer to themselves as an originalist,” said Macfarlane, a professor at the University of Waterloo and author of “Governing from the Bench: The Supreme Court of Canada and the Judicial Role.”
“Law schools in Canada are homogenously moderate-to-left-of-centre ... there’s less ideological diversity.”
Canada’s dominant theory uses the living-tree metaphor—constitutions should grow with time, and be reinterpreted through contemporary eyes.
