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.