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The Un-American Antonin Scalia


Via Ian Millhiser, I am shocked and appalled by this un-American passage in Antonin Scalia’s solo dissent today:

The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.

Someone needs to tell the Supreme Court that we need to rely on good, old-fashioned American standards of statutory construction, and keep dirty foreign law out of it!

Seriously, there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole “citing foreign law” controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons. And citations of foreign law are hardly just a recent development. Does anyone think it was illegitimate of Maclean to cite the “general law of nations” in his Dred Scott dissent?

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