Fox News’ Chris Wallace conducted a fascinating interview with the longest-serving member of the Supreme Court, Antonin Scalia. Justice Scalia is on a media tour promoting a book he has co-authored (with Bryan Garner), Reading Law: The Interpretation of Legal Texts. It offers what the authors consider to be 57 valid canons of construction and dispels 13 false notions about legal interpretation.
The time has come, Justice Scalia told the Wall Street Journal, “to sum up the things I care most about with respect to the law.” The main controversy among judges, he said, “is not conservative vs. liberal. The main controversy is how to approach the application of legal text.”
The book’s preface and introduction beautifully frame the competing judicial philosophies in the modern era. On the one side are textualists like Scalia and Garner, who “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”
On the other side is purposivism (where the author’s purpose, not text, is king), consequentialism (which argues that statues should be construed to produce desirable results regardless of what the text may say), and those who argue that a text has no independent meaning apart from authorial intention, which means interpretation is wholly subjective and left completely up to the interpreter.
What connects all these theories is the effort to, in the words of Scalia and Garner, “avoid the constraints of a controlling text.” The appeal of this approach is obvious: it allows judges to effectively write legislation rather than merely interpret it. They can encode into law their own political views. There is something tempting, even intoxicating, in “letting the intangible, protean spirit overtake the tangible, fixed words of authoritative texts.”
There are, however, several problems with this improvisational approach to judicial philosophy. For one thing, it is contrary to the views of the founders and our charter of government (see the United States Constitution, Article One/Section One, Article Three/Section One, as well as Federalist Number 78 for more).
In addition, as Reading Law points out, a philosophy of judicial hegemony and anti-textualism – of turning judges into “statesmen” and even quasi-kings — has led to the politicizing of judges, greater social rancor, less certainty in the law, and less faith in judicial institutions. Nor does it allow for any guiding principle for constitutional interpretation. The Constitution might be interpreted to align with the philosophy of James Madison — or the philosophy of Friedrich Nietzsche. Non-textualists simply make it up as they go along. Which is why the constitutional scholar Gary McDowell has said, “[I]t is not too much to say that the preferences for the rule of law over the rule of men depends upon the intellectual integrity of interpretation.”
Antonin Scalia has spent the last four decades of his life seeking to restore intellectual integrity to the interpretation of the law. Borrowing from an observation by Frank Easterbrook, no one since Justice Joseph Story has done it quite as well.
I've got this book. One of its many virtues, see the review by Stanley Fish, is that it with clear writing and good arguments accessibly clarifies the meaning of both textualism and one of its sub sets, originalism, terms people throw around much too much without precisely understanding them. n nThe driving rationale, as Scalia and Garner make clear, for textualism, and for that matter originalism, is democratic theory, according to the legislature, reflecting the will of the people, its deep and broad role, and to the judiciary, keeping checks on the legislature by holding its feet to the constitutional fire, its deep but narrow role, which precisely excludes making law.
"those who argue that a text has no independent meaning apart from authorial intention, which means interpretation is wholly subjective and left completely up to the interpreter." n nThis is a complete and utter misunderstanding of intentionalism (which is much more closely aligned with what here is called purposivism). Intentionalism simply notes that for a text to even be language, the marks that make up the text as we engage it (either on the page or through the ear) must first have been signified — that is, turned into signs by some intending agency. n nTo interpret, then, is to engage the marks we're given, understanding that they were intended, and then try to divine the intent of the author(s) / ratifiers. To do so, we rely on any number of things, from the standards of a given linguistic code, to hermeneutic conventions that we've established to make interpreting less hit or miss, to textual cues and tics we've accustomed ourselves to with respect to various authors with whom we've become familiar, etc. n nWith respect to the law, we've adopted legal conventions that require those who write law try to be as clear as possible in signaling their intent (eg., they don't write laws meant to be read ironically). A failure to properly signal that intent doesn't mean they don't have a specific intention or intentions — that is, if someone misreads what you've intended, that doesn't mean you failed to mean what you meant, but rather that you failed to signal to others what it is you meant — it just means that you were sloppy in the process of communicating that intent, that meaning. n nTo say, then, that intentionalism allows for a complete subjectivity in interpretation is nonsense. A text never exists outside of someone's intention to conceive of it as language — meaning that intention is a precondition for both meaning and interpreting. To view a set of marks and add to them signification without taking into account what the author meant when he turned those marks into signs in the first place (the very reason you believe you are reading language and not just something that accidentally happens to look like language) is simply to replace the author's intent with your own, to replace his signs with the ones you chose to make out of the marks available to you. n nIt is a form of theft: you strip the signification from a sign, reduce it to a mark that is supposed to signal language, and then add your own signified to the mark to create your own new sign, and so your own new text. n nThis is not interpreting, because you don't care what the text originally meant as signified by the agency who produced it; it is instead creative writing, with you re-signifying the text and then claiming that the text exists somehow either on its own, or ALSO means things its author(s) never intended it to mean. n nThis is linguistically incoherent. n nJohn Roberts, by noting in his ObamaCare decision that the text before him *could* be read as a tax, gives up the game: the law was passed as a penalty. Those who wrote it said it was a penalty and denied it was a tax. The legislative history showed that the Democrats were interested in removing the tax designation in favor of something else that functioned like a tax but wasn't. nSo for Roberts to say what he knew to be a penalty — or, following the conventions of legal interpretation, he was supposed to assume was a penalty, given that the text of law insisted it was such — COULD in fact be READ as a tax, is to say that he was permitted to take the signifier "penalty" and replace it with tax, and yet still pretend he was interpreting the same text. Even after he himself altered it fundamentally. n nIf Roberts assumed the real INTENT of the mandate was to create a tax but that the text as it was written was hiding that fact, he should have noted that legal conventions for writing and passing laws that can be readily interpreted demand that the text of the law be reworked by the legislature to make their hidden intent clear; if he didn't believe the intent of the mandate was to create a tax, then he needed to rule on the penalty as a proposed penalty, not rewrite the law himself and pretend he was merely interpreting it. n nRoberts it seems wanted to call the legislature liars for denying the fact of a tax. But he lacked the stomach to do so. So instead he ruled in a way that smacks of judicial activism and legitimated an incoherent and dangerous (supposed) methodology for reaching judicial decisions. n n n n n n n n n n n
I am a huge fan of Scalia. n nI hope he emphasizes in the book that without using textualism and originalism, as the only valid judicial philosophy for intrepreting the constitution and other laws, we slip away from the founder's vision of a Republic, and rapidly devolve into a judicial oligarchy. n nI would argue we have already arrived at that destination (judicial oligarchy), by the design of the liberal/progressives. n nAs the liberal/progressives realized they could not implement their desired socialistic statist policies by congressional mandate or the constitutionally designed amendment process, they moved to take over the schools of jurisprudence, to teach and promulgate the adoption of the competing philiosophy, purposivism. They have been diligently pursuing this action for 70-80 years at a minimum. n nUnfortunately, they have been wildly successful. n nIt would be nice to believe Scalia will be successful in helping to reverse this trend. n nI am not confident of any success in that regard.