AUGUST 24, 2012
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
Reading Law: The Interpretation of Legal Texts
By Antonin Scalia and Bryan A. Garner
(Thomson/West, 567 pp., $49.95)
JUDGES LIKE TO SAY that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.
The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. They advocate what is best described as textual originalism, because they want judges to “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’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”
Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.
One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.
A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.
So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined, and there are indeed a number of them (not much of a surprise, though, since he must have voted in at least two thousand cases as a justice of the Supreme Court). In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging ... the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. “In their full context,” they assert, “words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations.” That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.
The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.
Judge J. Harvie Wilkinson III has argued that because the historical analysis in Heller is (from the standpoint of advocates of a constitutional right to own handguns for personal self-defense) at best inconclusive, judicial self-restraint dictated that the District of Columbia’s ordinance not be invalidated. His argument derives new support from a surprising source: Judge Easterbrook’s foreword to Scalia and Garner’s book. The foreword lauds the book to the skies, but toward the end it strikes the following subversive note: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” The “living political community” in Heller consisted of the elected officials, and the electorate, of the District of Columbia.
Easterbrook goes on: “When the original meaning is lost in the passage of time…the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint, which Scalia and Garner endorse by saying that a statute’s unconstitutionality must be “clearly shown”—which it was not in Heller. Justice Scalia’s interpretation of the Second Amendment probably is erroneous, but one who doubts this should conclude that the relevant meaning of the amendment had been “lost in the passage of time,” and so the Court should have let the District of Columbia’s gun ordinance stand.
Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.
SCALIA AND GARNER contend that textual originalism was the dominant American method of judicial interpretation until the middle of the twentieth century. The only evidence they provide, however, consists of quotations from judges and jurists, such as William Blackstone, John Marshall, and Oliver Wendell Holmes, who wrote before 1950. Yet none of those illuminati, while respectful of statutory and constitutional text, as any responsible lawyer would be, was a textual originalist. All were, famously, “loose constructionists.”
Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law” (emphasis mine, except that the first “signs” is emphasized in the original). Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”
It is possible to glean from judges who actually are loose constructionists the occasional paean to textualism, but it is naïve to think that judges believe everything they say, especially when speaking ex cathedra (that is, in their judicial opinions). Judges tend to deny the creative—the legislative—dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis. The fact that loose constructionists sometimes publicly endorse textualism is evidence only that judges are, for strategic reasons, often not candid.
It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified. Yet Scalia and Garner claim that “recent research persuasively establishes that [the ruling in Brown that separate but equal is not equal] was the original understanding of the post-Civil War Amendments,” citing for this proposition a single law review article published seventeen years ago. They do not mention the powerful criticism of that article by Michael Klarman, a leading legal historian—which the author of the article they cite, Michael McConnell, is not, although he is a distinguished constitutional law professor and a former federal judge. And, ironically, McConnell based his analysis on the legislative history of the Fourteenth Amendment, which should be anathema to Scalia.
Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.
OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism. Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word “sandwiches” in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.
A company called PR had leased space to operate a sandwich shop in a shopping center. Its lease forbade the shopping center to lease space to another store if more than ten percent of the new store’s sales would be of sandwiches. PR claimed that the shopping center violated the lease when it leased space to a Mexican-style restaurant that planned to sell burritos, tacos, and quesadillas. After noting Merriam-Webster’s definition of sandwich, the court made a series of points in support of its decision against PR that were unrelated to dictionary definitions: “PR has not proffered any evidence that the parties intended the term ‘sandwiches’ to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of ‘sandwiches’ in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. [PR] was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties’ understanding of the term ‘sandwiches.’”
Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.
Yet in further obeisance to the dictionary Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.
Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne)that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.
In fact, the court said that “biologically speaking a fowl is an animal,” but that it was not in the class of animals protected by the statute. The court gave a number of reasons for this conclusion—all ignored by Scalia and Garner. One, which was in fact textual originalist, was that “persons of common intelligence” conceived of chickens as birds in contradistinction to animals. But the most cogent reason for the court’s result was that the legislature had passed a statute forbidding cockfighting on Sundays, which implied that it was permissible the rest of the week, and had later repealed the statute, implying that cockfighting was again permissible on any day of the week—and in fact cockfighting was an open and notorious sport in Kansas (to the surprise and disgust of the judges).
Scalia and Garner denounce a court that held, in a case called Braschi v. Stahl Associates Co., that the word “family” in a New York rent-control statute that prohibited a landlord from dispossessing a “member of the deceased tenant’s family who has been living with the tenant” included “a cohabiting nonrelative who had an emotional commitment to the deceased tenant.” The word “family” was undefined in the statute. The case may be right or wrong; what is disturbing is Scalia and Garner’s failure to mention that it was a homosexual couple at a time when homosexual marriage was not recognized in New York, and that the opinion states that the two men had been living together just like spouses and had been accepted as such by their families.
Scalia and Garner applaud a decision (State by Cooper v. French) holding that a refusal to rent a house to an unmarried heterosexual couple did not violate a statute forbidding discrimination in rentals on grounds of “marital status,” a term not defined in the statute. The court relied for this conclusion on another statute, one forbidding fornication. One may doubt whether that statute was the actual motivator of the decision, given the statement in the majority opinion—remarkable for 1990—that “it is simply astonishing to me that the argument is made that the legislature intended to protect fornication and promote a lifestyle which corrodes the institutions which have sustained our civilization, namely, marriage and family life.” This statement is not quoted by Scalia and Garner. (And two sentences later the judge referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.)
After the refusal to rent, but before the court’s decision, the anti-discrimination law had been amended to define “marital status” as “whether a person is single, married, remarried, divorced, separated, or a surviving spouse”; and the man and woman who had wanted to rent were both single, a protected marital status under the amended statute. On the page following their discussion of the case, Scalia and Garner, having moved on to another case, remark that “the meaning of an ambiguous provision may change in light of a subsequent enactment … unless the ambiguous provision had already been given an authoritative judicial interpretation.” The original provision— “marital status”—had been undefined and therefore ambiguous, and had not been given an authoritative judicial interpretation. So the amendment, which broadened statutory protection to unmarried persons, provided some basis (though far from conclusive), consistent with textual originalism as understood by Scalia and Garner, for the court’s decision that they denounce. They do not mention this possibility.
Scalia and Garner are capable of reveling in absurdity. A provision of federal immigration law allowed the wife of a naturalized American citizen to be admitted to the United States for treatment in a hospital without being detained as an alien. The non-citizen wife of a native-born (as distinct from naturalized) American citizen was denied entry for treatment, and the Supreme Court upheld the denial in Chung Fook v. White. Scalia and Garner applaud the result, which gave more rights to the wife of a naturalized citizen than to the wife of a native-born citizen, while calling it “admittedly absurd.” They recognize a doctrine of “absurdity” that permits interpretive deviations from literal readings that produce ludicrous results, but they declare the doctrine inapplicable in this case because a provision relating to native-born Americans would be out of place in an immigration statute, which is about aliens—yet the citizen’s wife whose right of entry was in question was an alien.
They fail to mention that the Supreme Court appears to have agreed with the sensible alternative interpretation of the statute that the court of appeals had adopted. The statute by its terms applied only if the marriage had taken place after the husband was naturalized, and was therefore limited to cases in which the wife had become an American citizen as a result of the marriage even though she was living abroad; the immigration law provided that “any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.” In the Chung Fook case, however, because the wife was Chinese, she could not, as the law then stood, become an American citizen despite being married to a native-born American. If, therefore, as the court of appeals held, the right of entry was limited to citizen wives, Chung Fook was not a beneficiary of the statute allowing entry. The Supreme Court said that it was “inclined to agree with [the] view” of the court of appeals, which saved the statute from absurdity (though not from offensiveness)—the view that the statute rested on the different status of citizen and non-citizen wives rather than of native-born and naturalized citizens. It was only after stating its inclination to agree with the court of appeals’ sensible interpretation that the Court embraced, it seems reluctantly, the alternative ground that the right of entry without detention did not apply to wives of native-born Americans. One wonders whether the Court would have embraced an obviously unintended statutory distinction between citizen wives of native-born and of naturalized American citizens to the disadvantage of the former, if to do so would have affected the outcome.
THERE IS A COMMON THREAD to the cases that Scalia and Garner discuss. Judges discuss the meanings of words and sometimes look for those meanings in dictionaries. But judges who consult dictionaries also consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive puzzle. How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?
Another problem with their defense of textual originalism is their disingenuous characterization of other interpretive theories, typified by their statement that textual originalism is the only “objective standard of interpretation even competing for acceptance. Nonoriginalism is not an interpretive theory—it is nothing more than a repudiation of originalism, leaving open the question: How does a judge determine when and how the meaning of a text has changed? To this question the nonoriginalists have no answer—or rather no answer that comes even close to being an objective test.” But “non-originalism” is not the name of an alternative method of interpretation. It is just a bogeyman, like what they call “so-called consequentialism”—“is this decision good for the little guy?”
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
Thus they declare that “a fair system of laws requires precision in the definition of offenses and punishments,” implying that judges are entitled to use a concept of “fairness” to interpret statutes creating offenses and punishments. How is that to be squared with textual originalism? They say that “textualism, in its purest form, begins and ends with what the text says and fairly implies” (emphasis added), but evidently Scalia and Garner are not committed to its “purest form,” for they say that “determining what is reasonably implied [by the words of a statute] takes some judgment” (emphasis in original). They endorse the “rule of lenity”—the interpretive principle that ambiguity in criminal statutes should be resolved in favor of the criminal defendant—without showing how it can be consistent with textual originalism.
They assert that what they call “fair reading” requires “an ability to comprehend the purpose of the text, which is a vital part of its context,” and though they add that “the purpose is to be gathered only from the text itself, consistently with the other aspects of its context,” they also say that “a sign at the entrance to a butcher shop reading ‘No dogs or other animals’ does not mean that only canines, or only four-legged animals, or only domestic animals are excluded.” That is certainly right, but it is not right by virtue of anything textual. It is right by virtue of the principle that meaning includes what “would come into the reasonable person’s mind,” or what we know an author has “in mind” in writing something. On such grounds (which surprisingly the authors embrace as well) a sign that says “No dogs, cats, and other animals allowed” must be read to include totally unrelated animals (contrary to the principle of eiusdem generis—the “canon,” which they also approve, that a last general term in a series is assumed to be of the same type as the earlier, specific terms) because “no one would think that only domestic pets were excluded, and that farm animals or wild animals were welcome.” Right again! But right because textualism is wrong. Similarly, although a human being is an animal, a sign forbidding animals in a restaurant should not be interpreted to ban humans from the restaurant. It is the purpose of the sign, not anything in the sign, that tells you what meaning to attach to the word “animals” among its possible meanings.
ANOTHER interpretive principle that Scalia and Garner approve is the presumption against the implied repeal of state statutes by federal statutes. They base this “on an assumption of what Congress, in our federal system, would or should normally desire.” What Congress would desire? What Congress should desire? Is this textualism, too?
And remember the ambulance case? Having said that the conclusion that an ambulance was forbidden to enter the park even to save a person’s life was entailed by textual originalism and therefore correct, Scalia and Garner remark several hundred pages later that the entry of the ambulance is not prohibited after all, owing to the “common-law defense of necessity,” which they allow to override statutory text. Yet just four pages later they say that except in “select fields such as admiralty law, [federal courts] have no significant common-law powers.” And still elsewhere, tacking back again, they refer approvingly to an opinion by Justice Kennedy (Leegin Creative Leather Products, Inc. v. PSKS, Inc.), which states that “the Sherman Act’s use of ‘restraint of trade’ invokes the common law itself ... not merely the static content that the common law had assigned to the term in 1890.” In other words, “restraint of trade” had a specific meaning (and it did: it meant “restraints on alienation”) in 1890 that judges are free to alter in conformity with modern economics—a form of “dynamic” interpretation that should be anathema to Scalia and Garner. A few pages later they say that “federal courts do not possess the lawmaking power of common-law courts,” ignoring not only the antitrust and ambulance cases but also the fact that most of the concepts deployed in federal criminal law—such as mens rea (intent), conspiracy, attempt, self-defense, and necessity—are common law concepts left undefined in criminal statutes.
Scalia and Garner indicate their agreement with a number of old cases that hold that an heir who murders his parents or others from whom he expects to inherit is not disqualified from inheriting despite the common law maxim that no person shall be permitted to profit from his wrongful act. (Notice how common law floats in and out of their analysis, unpredictably.) They say that these cases are “textually correct” though awful, and are happy to note that they have been overruled by statute. Yet just before registering their approval they had applauded the rule that allows the deadlines in statutes of limitations to be “tolled” (delayed) “because of unforeseen events that make compliance impossible.” The tolling rule is not statutory. It is a judicial graft on statutes that do not mention tolling. Scalia and Garner do not explain why that is permissible but a judicial graft disqualifying a murdering heir is not.
Scalia and Garner defend the canon of construction that counsels judges to avoid interpreting a statute in a way that will render it unconstitutional, declaring that this canon is good “judicial policy.” Judicial policy is the antithesis of textual originalism. They note that “many established principles of interpretation are less plausibly based on a reasonable assessment of meaning than on grounds of policy adopted by the courts”—and they applaud those principles, too. They approve the principle that statutes dealing with the same subject should “if possible be interpreted harmoniously,” a principle they deem “based upon a realistic assessment of what the legislature ought to have meant,” which in turn derives from the “sound principles…that the body of the law should make sense, and…that it is the responsibility of the courts, within the permissible meanings of the text, to make it so” (emphasis added). In other words, judges should be realistic, should impose right reason on legislators, should in short clean up after the legislators.
The remarkable elasticity of Scalia and Garner’s methodology is further illustrated by their discussion of a case in which the Supreme Court held, over a dissent by Scalia, that a federal statute providing that no state could require a statement relating to smoking and health to be placed on a cigarette package, other than the statement required by the statute, did not preempt state tort suits charging cigarette advertisers with misrepresentation concerning the health hazards of smoking. The ruling was consistent with the canon approved by Scalia that I mentioned earlier—that a federal statute is presumed to supplement rather than displace state law. The majority held that suits based on the state’s view of the health hazards of smoking were preempted (and this part of the decision Scalia concurred in), just not suits based on the duty to avoid misrepresentation. Scalia and Garner ignore the distinction, saying instead that “when Congress has explicitly set forth its desire, there is no justification for not taking Congress at its word.” But the statute was not explicit about overriding all state tort suits that might relate to cigarette advertising—it did not mention such suits; and so the approved canon should have carried the day for Scalia.
Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.
Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.
This article appeared in the September 13 issue of the magazine.
49 comments
I understand that Scalia was reluctant to take on the project of writing this book, but his co-author, with whom Scalia had earlier collaborated, talked him into it. Scalia should have followed his instincts, and all of us owe a debt of gratitude to his co-author for exposing the weakness (I won't say fraud because Scalia deceives himself as much as he deceives the rest of us) of Scalia's approach to statutory interpretation.
- rayward
August 30, 2012 at 7:18am
To paraphrase O.J. Berman, Scalia is a phony, but he's a real phony because he honestly believes all this phony junk he believes in.
- rayward
August 30, 2012 at 7:29am
I'm 1/3 of the way through the book, reading a canon or two a night while working out, having put it down for a while but now meaning to pick it up again. The first chapter on textualism is a powerful case for it, properly clarifying originalism and locating it as a sub set of textualism. I haven't read Posner's essay yet but look forward to it to see if it persuades me otherwise. But Rayward I noticed your slagging of the book and felt moved to register my ongoing delight with it. Btw, if you get into the book, you'll find its authors discussing one of the canons take apart severely some of Posner's reasoning on it and do a good job of it and with evident relish. There's a remarkable duel going on between Posner and Scalia. In Canada, where I have practiced law since 1977 there have been the occasional judicial volleys between appellate judges and lower court judges in their reasons for judgment (and I'm aware of one such kind of judicial quarrel going on right now) always related of course to the particular judicial review and the lower court judge's reaction to it. But I have never seen anything approaching the kind of extra case vehemence on public display between Posner and Scalia.
- basman
August 30, 2012 at 7:48am
I don't have to read Scalia's book or more than a paragraph of Posner's essay. Both soi-disant "textualism" and "originalism" have no proper place whatsoever in American law. Ours is a common law system. The drafters of the Constitution were common-law lawyers. Had they not been, the thing would have needed to be the size of book. In the common-law system, judge-made law has been the reality for centuries, including the centuries preceding the drafting of the Constitution. That has clearly included providing for unforeseen and dimly foreseen circumstances and working to make a coherent whole out of the law, to fit each piece of law, legislative of judicial, into an existing context so that the whole makes sense. This requires reconciling conflicts not or only dimly foreseen. The Framers would not have understood what they were doing without the expectation that common law courts would apply the law they were writing by doing what common law courts do, then and now. That is the opposite of what Scalia advocates. Hence, his entire theory is anachronistic and completely ungrounded. Indeed, Supreme Court construction of the Constitution so as to declare statutes either within or without Constitutional authority is nowhere to be found in the Constitution itself. It is a judicial interpretation of John Marshall, acting as a common law judge to make sense out of the provision that the Constitution is the supreme law of the land. In a common law system, that implies a consequence, that laws enacted ultra vires, outside of constitutional authority, are not valid or binding. But it requires common law jurisprudence to arrive at that conclusion. It cannot be found in the text. A prohibition against flag-burning is not a prohibition of cloth-burning. The act being prohibited is the symbolic act. Thus, it makes sense to regard it as speech for purposes of the First Amendment. Reaching that conclusion is a lovely example of the common law at work. It has absolutely nothing whatsoever to do with textualism or originalism. Scalia is a fraud, a liar, an ideologically driven judicial crook.
- roidubouloi
August 30, 2012 at 10:06am
What Roi said.
- IowaBeauty
August 30, 2012 at 11:36am
I always like Mr. Posner's writing for its clarity in an area -- the work that judges do -- which needs clarity. I agree with Roi to the extent Roi argues that the words on a page mean little if the problems which they address are not understood; particularly if the problem is one which recurs, like the tendency over time to make it easier to convict people of crimes; the tendency of religion to creep into government; or the tendency of government to put courts in the position of choosing between revenue and personal rights.
- Nusholtz
August 30, 2012 at 2:58pm
Maybe this is too simplistic, but it seems that textualism and originalism have the same problem as Biblical literalism or fundamentalism. There's no such thing as a literal reading of any reasonably complex verbal text. Purported literal readings are not literal at all, but merely an attempt to de-legitimize competing interpretations, by claiming that its judgments are grounded in objectivity while competing judgments are based on subjective wishes. Scalia just happens to be lucky enough that his subjective wishes are in full accord with the objective results his non-interpretive interpretive method demands. Isn't that something? And what Roi said.
- GeoffG
August 30, 2012 at 5:36pm
Basman, I would definitely read the article -- classic takedown that suggests that the authors are inconsistent and even deceptive in their defense of textual originalism and that reiterates Posner's long-held view that textual originalism is unworkable, undesirable, ahistorical, and inconsistent with both long-standing, well-respected precedent and even with its own proponents' practice (at least, Scalia's practice). Roi, I've never been persuaded by the invocation of the common law when arguing against originalism, because textualists have an obvious ready reply, which is that a common law judge is *authorized* to make it up. Everyone agrees, though, that when faced with an authoritative text, a judge must in some plausible sense adhere to it. Just what counts as doing that is not resolved, I think, simply by invoking the looseness of the common law -- a context where there is looseness precisely because there is no authoritative text to interpret. No, what I'm calling looseness when it comes to texts has to be defended on its own terms, not by analogy.
- JakeH
August 30, 2012 at 6:40pm
roidubouloi "I don't have to read Scalia's book or more than a paragraph of Posner's essay. Both soi-disant "textualism" and "originalism" have no proper place whatsoever in American law. Ours is a common law system. The drafters of the Constitution were common-law lawyers. Had they not been, the thing would have needed to be the size of book." Judge Posner's essay is a joy to tread. In any case, the idea that the US is a common law country like England is overstated. Yes judges use precedence in their rulings but these rulings have to conform to the constitution. Hence they don't make law out of whole cloth. Hence while judges can set up precedence (especially in commercial law) their rulings can't contradict written statutes. Posner did a great job showing what a lying scumbag Scalia is. There is no there there with him. One final point, Posner's article wasn't written for Roid or for people like who already know not to take Scalia seriously. It was written for those (especially lawyers) who might want to give Scalia the benefit of the doubt but will have a much harder time doing so now. The articles in this issue on Paul Ryan and Scalia alone make it worth while to subscribe to TNR. May it long flourish.
- arnon1
August 30, 2012 at 7:29pm
Jake, no responsible lawyer thinks that the legislated text is not the primary source of positive law or that a court is free to pretend the text does not exist. The subject of how to interpret texts and what is jurisprudentially legitimate is a serious subject on which volumes have been written. But the one thing that is drop-dead certain is that the common law tradition has never regarded legal text to be self-executing, to lead “objectively” to a particular outcome without need of judges construing the text by employing the entire panoply of common law jurisprudential tools. Thus, Scalia’s assertion of “textualism” as a basis for correct decision is a completely ahistorical invention. Textualism is also inherently at war with “originalism.” The claim of textualism is that the words of the legislation suffice to determine the correct outcome. But originalism claims that it is the “original” understanding of the text that controls. That claim is completely contradictory to textualism in that the “understanding” of a text at a particular time is not found in the text itself but in other sources, originating as it does in the minds of the contemporaneous understanders, not on the page. As soon as one begins to inquire into original understanding, textualism is dead because the claim of textual sufficiency has been abandoned. And immediately questions arise. Whose understanding? How do we determine their understanding long after the fact? What about contemporaneous conflicting understandings? How can any words every be understood without an understanding of their context? As in most cases there is no definition of either whose understanding controls or any means of determining that understanding definitively, if indeed one existed with regard to the question at hand, the common law method falls back to consideration of "purpose." What purpose, considered in the context of the conditions and society in which the particular text was written down, would lead one to write such a text? The purpose is thus first inferred in a general way, not as the presumed thought of a particular person or group of persons. Then consideration is given to how the inferred purpose can be effectuated in the current context, taking into account other purposes of the whole body of law, especially closely related law, that would also be served or disserved by a particular construction. Common law method abhors both textualism and originalism. It is antithetical to both because it is not merely a body of law, but a style and method of interpretation and construction – creation – of law. It refers to text, it refers to contemporaneous thinking, but it does not take either as likely except in a rare case to provide a definitive answer. History is clear that the common law requires a body of administrators, judges, educated broadly in the law, legal history, and common law jurisprudence to “make sense” out of it in contemporary society, including creating exceptions and/or sub-rules as necessary. Indeed, common law cannot sensibly be separated from the centuries old traditions of common law judging. There is no means of understanding common law without understanding the methodology by which it is administered. Yet Scalia undertakes to do just this, to fetishize text in a manner that no Framer would find comprehensible. If one looks to original intent, there can be little doubt that the Framers intended their text to be interpreted as common law is interpreted; they could hardly have expected anything else. The contemporaneous understanding of jurists such as Marshall makes this abundantly clear. Scalia therefore has not a leg to stand on. He demands something that is logically inconsistent, impossible of execution, and plainly at odds with the original understanding of the Framers of the Constitution as to how it would be applied and put to use. It is also abundantly clear that Scalia merely claims textual and/or original understanding as justification for his preferred outcome, even when the evidence is such that neither the text nor any plausible contemporaneous understanding would support him. In other words, he just makes it up. That is why I say he is a judicial crook. Perhaps a better description would be that he is a judicial charlatan. ___________________ arnon, this is a common law country. Period. It surely was unambiguously so at the time the Constitution was written. Common law does not mean English law, but, as described above, is above all a method of judicial construction that originated in English courts. That American jurisprudence has diverged over time from English jurisprudence is neither here nor there. This is a distinct society and law is expected to fit itself to society. As well, English judges have no greater freedom than do American judges to ignore positive legislation. My point was not that Posner is not worth reading, but that Posner's elaborate arguments are quite unnecessary for an understanding of how and why Scalia is a fraud. The entire oeuvre of constitutional jurisprudence is based on the "original understanding," well elucidated by Chief Justice Marshall, that the Constitution would be construed as common law is construed; that the Constitution is a common-law law. Hence, common law jurisprudence is completely inseparable from the Constitution. Scalia's claimed method, even if it were not a fraud, is therefore fundamentally ungrounded in the Constitution as understood by its Framers. The rest is commentary.
- roidubouloi
August 30, 2012 at 8:37pm
"My point was not that Posner is not worth reading, but that Posner's elaborate arguments are quite unnecessary." Necessary to me and to others who don't already have all the answers. I have read his books on law and literature and people with an open mind can learn a lot from him. I will not debate the question of common law here, but it's not as simple as saying that "the US is a common law country."
- arnon1
August 30, 2012 at 9:00pm
Indeed, it is just that simple. common law common law, also called Anglo-American law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations). In this sense common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. [Encyclopedia Britannica] The United States and most Commonwealth countries are heirs to the common law legal tradition of English law.[15] Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder[16] and general search warrants.[17] As common law courts, U.S. courts have inherited the principle of stare decisis.[18] American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.[19] The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[20] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[21] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,[21] such as the heightened duty of care traditionally imposed upon common carriers.[22] Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[23] However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law.[24] The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive. [wikipedia] The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails. [The Free Dictionary] Common Law and Civil Law On looking at the historical development and substantive features of the legal systems of the world we can see that many of them fall into one of two families. In the whole of human history only two peoples seem to have founded a secular, comprehensive, enduring, and widespread legal system: the Romans of the Ancient World and the Anglo-Normans of the Middle Ages. The pedigree of the civil law goes back to Ancient Rome, although the later customary family law, and the canon law of procedure have also marked the system. The Common Law world begins in England. Of course within each family there are major differences between individual members, but each is still quite clearly not a member of the other family. . . . Some version of the common-law is found today only in places once occupied by the British, among them Ireland, the USA, Canada, Australia, New Zealand, India, Pakistan, Kenya, Uganda, Zambia, Nigeria and Ghana. But (except for the special case of Israel) no country which has the common law seems able or willing to get rid of it. [http://www.law.cornell.edu/wex/legal_systems] « Self-described communist, Slavoj Zizek: “Capitalism is the most productive social order in the history of humanity.” Former Fed Chairman Paul Volcker laughs at the great increase in wealth disparity over the past 10 to 15 years, and at Americans for not speaking out more forcibly against it » Proof from the U.S. Constitution that federal general common law does exist, despite what the U.S. Supreme Court said October 30, 2011 by FauxCapitalist U.S. Supreme Court The U.S. Supreme Court decided in the case of Erie Railroad Co. v. Tompkins (1938) that: “There is no federal general common law.“ Article III, Section 2 of the original Constitution stated: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,“ The distinction between “Law” and “the Laws of the United States” shows that the former is referring to common law, while the latter is referring to Acts of Congress. Therefore, the original Constitution recognized the pre-existence of common law, and that it was within the purview of U.S. courts to shape, including federal courts. [I would go further: The distinction between Law and Equity is incomprehensible except by reference to the English common law system of law and equity courts. Many if not most state constitutions are explicit that their courts are courts of both law and equity, and indeed this is the American norm.] The phrase “common law” isn’t explicitly referenced in the original Constitution; It is mentioned in the Seventh Amendment, which states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.“
- roidubouloi
August 30, 2012 at 9:57pm
So "common law" is mentioned twice in the Construction (in how many pages?) and on the basis of that you decided that the US legal system is driven by common law? I prefer Judge Posner's writings to yours Roid.
- arnon1
August 30, 2012 at 11:06pm
Don't be silly. This is not my decision or conclusion. It is fundamental in American legal history that the US is a common law country to the point where the Encyclopedia Britannica can state that the common law system is also called "Anglo-American law." Hence, the various quotes from a variety of sources. The common law structure of our legal system is so far a "given" in the Constitution that no explanation at all was thought necessary when references to it are made therein. This is not controversial, except for you, although you declined actually to explain just why it is, in your view, "not so simple" that the US legal system is a common law system. You also seem to believe that common law and legislated positive law are antithetical, that there is only "common law" in the absence of statutory law. This is not at all the case. England has had a parliament for quite a few centuries. Positive, legislated law was fully contemporaneous with the emergence of common law courts. Common law judging has always included both judge-made law in the absence of statute and judicial construction of statutute. Note above the specific references to the judicial history of important English statutes such as the Statue of Frauds. Our statutes are written in the expectation that their actual operation will be supervised by common law courts engaged in common law jurisprudence. Chief Justice Marshall made clear that this understanding extended to the Constitution itself. Hence, Scalia's claim that constitutional interpretation proceeds on some other basis than the application of the various techniques of common law jurisprudence, whether he calls it textualism, originalism, or some bastard combination, is ahistorical and without foundation. If Posner helps you to understand this, well and good. But the long-form explanation is largely beside the point: Scalia's method is contrary to the understanding of the Framers, of whom Marshall was a contemporary. Indeed, if one takes Scalia at his word, there exists no basis for Supreme Court declarations of unconstitutionality as there is no textual support for this whatsoever. The entirety of constitutional jurisprudence is grounded not in the text of the Constitution, but in common law practice.
- roidubouloi
August 31, 2012 at 1:12am
I don't know why but I'm not reading Posner here in fell swoop but am rather picking my way through it slowly, thinking about its bits as I go along. I'm enjoying the vigorous discussion here by some of the gooder minds attending this site. I just (for now?) want to comment on one theme: I find Jake's argument distinguishing the common law function of judges and their statute and constitutional interpreting function unanswerable. And on a proximate but logically unrelated point: I don't understand the theoretical antithesis between textualism and originalism. There may be open-ended questions posed by original understanding but that's not tantamount to a logical denial of textualism, however fractious the disputes over original understanding may be. The idea of the common law as abhorring originalism and textualism makes no sense to me. As Jake notes, judges are dealing with precedent case law, not legislative pronouncnement and are charged with the development of the law as new situations render precedent case law unjust or unworkable. (This in fact lies at the heart of the genesis of courts of equity.) In no way do I see what common law judges doing as informing the reading of state's and constitutions. So while there are arguments certainly against textualism and its sub set originalism, analogical resort to the common law function of judges doesn't seem one of the productive ones. Slagging Scalia, a point I've raised before, and like me farting in a hurricane, is equally but differently unhelpful--separate but equal so to speak.
- basman
August 31, 2012 at 12:45pm
The above is pretty poorly written, the wages of lying on one's back and typing o/into one's IPad with one's one finger.
- basman
August 31, 2012 at 1:11pm
What Scalia's - and textualists' - overreliance on the "dictionary" does is to elevate the dictionary in question to the same level as the law or the constitution that is being interpreted. Surely that, alone, should give pause to any student of textual interpretation in taking Scalia's approach seriously. Posner's article is lucid and quite enjoyable to read. And I say this as someone who suffered through law and economics nonsense for three years and has never been favourably predisposed to liking him; he's grown on me over the years - am actually reading, and quite liking, his "Law and Literature". It is also intellectually coherent and honest, which is more than can be said about Scalia's judgements over the years. If Posner's analysis is accurate - and he appears to be - then Scalia has been demonstrated as a charlatan and a knave in judicial robes by a lower court judge under his own review - that's something. His courtroom performance marks him as a rank bully, right up there with English football yobs. Each of his death penalty decisions puts him further down the moral pole than Taney. His association with a sitting, and highly partisan, VP whom he had installed in office through judicial perversion brought disrepute to the Court. To remind ourselves that a highly compromised Judge purports to lecture the universe about the appropriate approach to judging, is not "slagging" Scalia.
- icarus-r
August 31, 2012 at 2:13pm
Jake's argument rests on an imagined and unfounded distinction between "common law" and statutory law. There is no such distinction as a matter of history or jurisprudential thought. Yes, there is a body of English law that evolved in the courts, much of contract and tort law for example, without a great deal of legislation. But then there is the Statute of Frauds which governs in many contract situations. No sooner is the statute enacted, than courts must decide cases applying the statute. They then proceed to do more or less the same thing they do in the case of judge-made law, that is, to reason analogically and with regarded to a stylized "purpose" that is imputed to the law. This does not mean that the courts do not recognize that the statute does not constitute binding authority. But the statute arrives into an existing institutional context that operates upon law in order to reach conclusions in cases. If one looks historically at the actual processes of common law judging, as evolved over centuries, it does not at all resemble Scalia's textualism or originalism. The text of a statute is of course taken as the starting point, but common law judges, and legislators, did not understand that the correct application could be discerned by reading the text without regard to a myriad of other factors that push the interpretation of the text, its meaning and purpose, in one direction or the other. A good judge will consider all those factors and the weight to be given them and then explain the reasoning in an opinion. If the text were dispositive in the manner than Scalia pretends, all the opinions about the meaning and application of statute would be pointless. The answer in every case would be, "The case is decided this way because that is what the statute says." There would be no occasion to explain or gloss the statute. I say that textualism is inconsistent with originalism because of this, quoted from wikipedia, which strikes me as a fair summary: "Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law." And this: Originalism is an umbrella term for two major theories, principally: "The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justice Scalia, are associated." The problem with the latter form, the "stricter" Scalia version, is that it is logically inconsistent with textualism, not matter how loudly (and obnoxiously) Scalia may claim otherwise. There is no received "ordinary meaning" the text and no source of such meaning, and certainly no discerning such meaning from the text itself. If one posed the question to ordinary people at the time that the law was written what it means as applied to a particular set of facts, there would no doubt be a variety of answers. Further, to even attempt to discern such a thing necessitates going well beyond the text for sources of meaning. Hence, originalism, whether based on the intent of the legislators or the presumed meaning second parties is fundamentally, logically, radically inconsistent with textualism. Competent common law lawyers don't have this problem because they do not make the claim that the proper application of a law can be discerned solely from the text or solely from the understanding of some particular contemporaneous person or persons, within or without the legislature. The analogical process casts a wide net, considering the text, the intentions of the legislators, precedents, social context, the problem with which the legislature was faced, in order to impute a stylized "purpose" against which the instant case can be measured. A skilled judge makes it look easy, but it is not. Nor is it neat. The fundamental problem for Scalia's claim is that there is no history at all of statutes, positive law, being interpreted in the manner he claims, whether under the banner of textualism, originalism, or some combination. Quite to the contrary. The "common law," consisting of the entirety of judicial decisions, including those based on statutes, does not look anything like textualism or originalism. Common law judges have never done anything so narrow. The Constitution is a particular "supreme" positive law. Confronted with a case, Marbury v. Madison, the court considered how to apply the law to the particular case, just as courts had historically done with statutes and by analogy to the longstanding doctrine of action ultra vires. In finding that the government acts under consideration were ultra vires under the Constitution, the court merely did exactly what common law courts had been doing with statutory law for centuries. As the law in question is declared "supreme," then all government acts inconsistent with it do not survive; they are unconstitutional. None of this is found in the text itself or in any possible "ordinary meaning" of the language of the Constitution. None of it. It is only comprehensible because the law of the Constitution arrives into an institutional framework and context -- an existing judicial system that operates on legal texts, both statutory and judicial -- to reach conclusions. The conclusions are not in the texts. The conclusions are the result of the operation of the judicial institution upon the texts. The manner of operation itself is a matter of long-standing, yet always evolving, practice. The text cannot be understood without reference to the existence of the institution of a common law judiciary. Finally, there is simply no basis, in the text, in the debates, in the history, indeed anywhere, for exalting two of the sources for judicial reasoning -- the text itself and a some hypothetical original meaning or original intent -- to the absolute exclusion of all the other methods and practices of common law courts. Thus, Scalia's theory is radically at war with itself. It finds no foundation in either of the sources that he presumes to be absolute -- the text and "original meaning." Indeed, as I have pointed out, if one applies Scalia's highly restricted methodology, not one that is consistent with common law practice through centuries, one cannot justify the act of declaring anything unconstitutional. There is no text in the Constitution to which that can be related. But Marshall's conclusion in Marbury makes perfect sense if one assumes, as the Framers clearly did, the continuity of the judicial institution and its practices and that the Constitution, as with all other positive law, was meant to be construed and applied according to the practices of common law courts.
- roidubouloi
August 31, 2012 at 2:16pm
"This does not mean that the courts do not recognize that the statute constitutes binding authority." Sorry for my previous double negative. Common law jurisprudence recognizes that a statute is authoritative, but that it is also necessarily and logically incomplete and relies for its application, and hence completion, upon the existence of the courts and their established practices. A law can be regarded as a set of instructions to the judicial machinery. But the instructions are as meaningless without the machinery as computer software would be without reference to the machines on which it runs. Marshall's view, the view that animates all subsequent constitutional jurisprudence, was that the judicial machinery was meant to operate upon the Constitution as with any other positive law, recognizing the special aspect that it is declared supreme (and that it is not open to change by the will of a simple majority, whether expressed directly or indirectly). Scalia's view, which has no source other than Scalia, is that the judicial machinery is not meant to operate on the Constitution in any manner that would be recognizable by the Framers, and by knowledgeable people contemporary with them, as being in accordance with then established judicial custom and practice. When called upon to apply positive law, common law judges have never behaved as Scalia demands they behave. Even Scalia doesn't behave this way (hence he is incoherent, as Posner says). He just claims to in order to give his decisions an authority they do not deserve.
- roidubouloi
August 31, 2012 at 2:28pm
To pick on what Roid sets out above (I don't necessarily agree with the emphasis on the common law, because Posner's challenge to Scalia's alleged textualism is equally applicable in a civilist system), textual constraints on a judge are not so tight as to eliminate interpretive choice altogether. You don't have to be a judge or a lawyer to acknowledge this basic fact: you engage in this exercise every time you read a text in any language other than your own, look up a word and have to choose as between different definitions the one that fits. In law, if the text were as controlling as Scalia appears to suggest, there could be no dispute, in good faith, as to the meaning of a legal obligation. Indeed, the very notion of reasoned dissent would be impermissible. Here is the conundrum: if reasoned good faith interpretation of a text or a law is capable of arriving at equally plausible legal meanings or outcomes, making a choice as between these interpretations cannot be a purely legal exercise. This is why, from a purely juristic perspective the process of interpretation is, in some respects, more important than the results achieved: Because arriving at any legal interpretation implies a choice as between equally acceptable alternatives, and because that choice is almost invariably made on policy or political grounds, that choice must be justified by reference to the universe of conventions, assumptions and understandings that underlie the legal system in question. And so, even assuming that there are no objective standards of consistency or persuasiveness, the strength or weakness of the legal reasoning of a judicial organ can reasonably be tested as against the basic assumptions and understandings common to all legal systems. Scalia's corpus of judicial reasoning, and his specific reliance on the primacy of something (text) that cannot even be deciphered without referenced to something else (Johnson's Dictionary) is suspect because it fails this basic test. Posner, a fellow Republican and conservative jurist, is moved to check the cases set out in the footnotes, because what Scalia says of a case goes against what he knows to be the basic understanding of judicial organs. Finally, as I noted above, I think the discussion about the role and influence of the common law, while interesting, is a distraction from the main point. Not even the most positivist German jurist would argue that the Duden should be elevated above the reasoning of the judge: there is a reason we appoint jurists, and not linguists or philologists, to the bench.
- icarus-r
August 31, 2012 at 4:04pm
*pick up on what Roid sets out ... have no intention on picking on him. Oy ...
- icarus-r
August 31, 2012 at 4:05pm
I suppose it is a matter of taste. Icarus prefers to focus on the impossibility of what Scalia purports to be doing. I agree that Scalia's purported program of judicial decision-making is impossible of execution. However, that is a philosophical/jurisprudential argument that I don't believe is so easily accessible and is met by pseudo-philosophical/jurisprudential arguments that confuse the situation. What I believe is inarguable is that Scalia's claims for proper judicial behavior have no basis in American legal history and practice (whether they are described as our "common law" system or on some other terms). His claims are likewise irreconcilable with the very notion of judicially-declared "unconstitutionality" as the text of the Constitution provides no basis for such a thing. Rather, the idea of judicially-declared unconstitutionality emerges directly out of the very set of long-standing Anglo-American judicial customs and practices that Scalia disparages. In a nutshell, Marshall's opinion in Marbury would not be possible applying Scalia's so-called rules. As Posner points out, neither would the decision in Brown v. Board of Education. Is Scalia too stupid to know this, or is he aware that any theory of judicial construction that ruled out Brown would thereby be utterly discredited in modern society? I think the latter.
- roidubouloi
August 31, 2012 at 4:25pm
I would like to point out again that not only would conscientious dissent be impossible if Scalia were correct, but opinions of more than a sentence would be entirely superfluous. The basis for every constitutional judgment would always be neither more nor less than, "That is what the text says." Why spend dozens of pages, as Scalia does, explaining what the text says if it clearly says it any any other source, such as the opinion itself, is irrelevant?
- roidubouloi
August 31, 2012 at 4:28pm
'because what Scalia says of a case goes against what he [Posner] knows to be the basic understanding of judicial organs.' But another set of terms for our common law system. Proving, I think, that it is not possible to have this discussion without reference to our long-established system of judicial decision making. That, and not the philosophical/jurisprudential arguments about the nature of meaning is what I believe to be the more important point.
- roidubouloi
August 31, 2012 at 4:34pm
Roi, while I'm sympathetic to many of your conclusions, I continue to think that your emphasis on the "common law" is misplaced. For example, I think this is a mistake: "Jake's argument rests on an imagined and unfounded distinction between 'common law' and statutory law. There is no such distinction as a matter of history or jurisprudential thought." But there is -- a huge one, a fundamental one. "Common law" refers to several different things, so let's get straight what we're talking about. It's different meanings are best understood by pointing to the term's opposites. One opposite of "common law" is "equity," a distinction that's important for 7th Amendment purposes and maybe a few others but not for ours, so I won't waste time on it. Another opposite of "common law" is "civil law," which refers to the distinction between our own legal system, inherited from England, where rules are derived from and refined or changed through judicial decisions, and other legal systems, like those of continental Europe, where judges were not permitted to pronounce legal rules and instead applied a body of law derived from comprehensive codes (going back to the Napoleonic Code). A third opposite of "common law" is in fact "statutory or constitutional law." This is the distinction, within a common law system like ours, between judge-made law, and law set down in authoritative texts other than caselaw, like statutes, constitutions, rules, and regulations. So, we lawyers will say something like, "there's no statute that deals with that issue; it's a common law rule." And, when we talk about a "common law judge," we're talking about a judge who, by virtue of the particular case before him, is dealing with that body of judge-made law rather than a statute or other similar external source of authority. I hate to invoke the dreaded dictionary, but if you look up "common law" in Black's, the very first meaning you will see is the following: "The body of law derived from judicial decisions, rather than from statutes or constitutions." I will note that Black's is now edited by Scalia's co-author Bryan Garner, but we shouldn't hold that against him in this case. It's an uncontroversial meaning. So, it makes no sense to deny, as you do, the distinction between "common law" on the one hand "statutory law" on the other. Indeed, they're opposites! So, "common law," in the senses relevant for us, refers either to customary, judge-made law or to the system that embraces that body of law and method of creating it and changing it. In that latter sense -- when we're referring to the legal system as a whole -- we're simply pointing to a defining characteristic of our system, a characteristic that makes it different from others. But there are many ways in which our legal system is *not* that different from others. One of those is that, today more than ever, cases turn not as much on that body of customary, judge-made law, but rather on authoritative texts enacted by legislatures, regulatory bodies, or constitutional framers -- just like in continental Europe. Although the basic principles, and many of the details too, in the areas of property, contract, and tort continue to find their source not in any code or constitution, the legislature does stick its nose into those areas -- e.g., as you mention, the statute of frauds, the uniform commercial code governing sales contracts -- and has taken over whole areas of law from judges, most basically and prominently, civil and criminal procedure and substantive criminal law, typically for reasons of fairness, predictability, and efficiency. Further, the legislature has *added* whole bodies of law that were never recognized at common law (or equity) -- for example, bankruptcy, antitrust, securities regulation, employment discrimination, to name four out of hundreds. My contention here is that the existence of judge-made law, and the fact that our system uses it, does not describe or prescribe or automatically command or exclude any particular method for interpreting texts, at least not in the direct, obvious way you suggest. You argue that statutes were not unknown to historical common law lawyers and mention the statute of frauds. That's true, but the way in which lawyers and judges in a common law system approached texts like the statute of frauds -- or any of the countless other statutes that serve as the basis of authority here -- is not necessarily fundamentally different, or more flexible, than the approach in civil code countries. I admit that I don't know much about other systems, and the common law method may mean that judges here feel more constrained by precedent, including precedents interpreting statutes, than their counterparts in Europe, but I have a hunch that, putting aside stare decisis, when it comes to *methods* of statutory interpretation, they engage in much the same debates we do about consideration of the purpose of the law, the intent of the legislature, the context of the law, the absurdity of a given application, the purported supremacy of the text itself, how to prioritize different sources of information about the law, how to deal with ambiguity, what role to give rules of construction, the importance of making law coherent, etc. And, even if there are generalizations we can make about differences in methods of interpretation, I don't see the fact that we have a "common law" system as decisive when it comes to resolving those debates. After all, we may approve of the common law, and grant the wide authority to judges in shaping it, while also advocating what I'll call a stricter approach to non-judicial authoritative texts. And we may take that position for a substantive reason you don't touch on at all: namely, that being too loose with texts allows unelected to judges to assume authority they do not have, which is of particular concern in constitutional cases because a constitutional ruling, unlike a common law pronouncement, cannot be overruled by the legislature. Your only real argument against textualism or originalism is itself an originalist one -- that the framers would not have intended the Constitution to be interpreted in a textualist or originalist fashion, and your only real evidence of that is the mere fact that ours was a common law system. I don't think that holds up. One can argue, as David Strauss does in his interesting book The Living Constitution, that we should see constitutional interpretation over time as akin to the common law process of shaping judge-made law over time, but they're not really the same thing. Strauss is drawing an *analogy* to the common law. We can also argue that when interpreting texts, we should consider the context, spirit, purpose, and result of the law -- as Posner quotes Blackstone as advocating -- but are those things unique to a common law system? Or are they methods of legal interpretation that transcend legal systems and that require their own justifications? Meanwhile, the Constitution was at the time a new animal, and we need to ask what methods of interpretation should apply to *it*, as distinct from methods used to apply, say, the statute of frauds (which isn't so difficult). The idea that a common law judge could overrule a statute was not something the framers would have been familiar with from their experience in England. Moreover, I think your reliance on original intent when it comes to methods of interpretation is problematic given your insistence that we should not generally rely on original intent. What sense does it make to laud Marbury vs. Madison as non-originalist, while at the same time asserting the absolute primacy of an original intent concerning constitutional interpretation (without, incidentally, pointing to much historical evidence for that original intent)?
- JakeH
August 31, 2012 at 4:37pm
Roid: "But another set of terms for our common law system." Not really. The common law is part of that basic understanding, but not the whole of it. I can have a sound legal discussion with my German colleagues, not because he understands the common law or I the civillist system, but because we share certain basic understandings common to jurists in the main legal systems. Jake: "The idea that a common law judge could overrule a statute was not something the framers would have been familiar with from their experience in England." True, but I don't this this is what Roid was saying. The argument is that the Constitution said something - Supreme Law of the Land - that had to be reconciled with the experience of the common law judges. The way they resolved it was through the doctrine of ultra vires. Bear in mind that the Privy Council arrived at much the same place, in respect of colonial and Dominion laws, through a different route. In the colonies, for example, local laws were declared ultra vires where they fell afoul Parliament's basic laws establishing the colonies. Bear in mind that Lord Coke, the father of English jurisprudence, tried his hand at declaring a law invalid. He was slapped back into place. So the idea itself was not entirely alien, even in 1803.
- icarus-r
August 31, 2012 at 5:07pm
Nice post--08/31/2012 - 2:16pm EDT | roidubouloi--even if I disagree with it and think it misconstrues or understates or is reductive of Scalia's argument-- which is not reducible to mere reliance on dictionaries. I'd like to try to take it on at a better moment, maybe over this long weekend, when I get a few minutes to myself. I'll hereon ignore vituperation agst Scalia personally, which is neither here nor there to me nor to the issues under discussion. P.S. is Law and Literature where Posner whomps Martha Nussbaum's strange views on law and literature? He did that very effectively.
- basman
August 31, 2012 at 6:34pm
p.p.s.s. Last light word on this but can't resist. Let's say there's a line between slagging and non slagging. This--"Scalia is a fraud, a liar, an ideologically driven judicial crook"--I tend to think, edges to the slagging side of the line the way Usain Bolt edged to victory in his last two foot races.
- basman
August 31, 2012 at 6:40pm
Oops, just saw this--08/31/2012 - 4:37pm EDT | JakeH: it may have stolen such thunder I delusionally think I may have delivered myself of. I'll make a few comments anon in any event.
- basman
August 31, 2012 at 6:48pm
Well, well, Jake. You mean that even such a term as "common law" has multiple meanings and one must understand the context in which the term is used to understand the intention of the writer? Quelle surprise. Phone Scalia. Let him know that even this text does not manage to have a single, received, inevitable meaning discernible from the words alone. Whether our system is similar to or different from the civil law or other systems is of no relevance whatsoever to this discussion. Nor is it relevant that we have both courts of law and equity (merged in America) or that "common law" in some contexts means judge-made law to the exclusion of statute. The point rather is that the Constitution arrived into an established judicial culture in which statutes are construed and applied by judges employing a variety of techniques of reasoning that does not at all resemble what Scalia urges as the exclusive means of construing the constitutional text. Yes, we can imagine for the sake of argument that there could exist a variety of disparate approaches to the interpretation and application of texts (although arguments above, with which I agree, are that there is no such thing as the inevitable meaning that Scalia proclaims). Also quite irrelevant. The historical reality is that we had and have a system, a traditional set of techniques, of judicial construction of statutes, of positive law. It existed at the time of the drafting of the Constitution and it exists to this day. It has evolved and changed, but I think that the judicial opinions of 200 years ago are quite recognizable as part of the same judicial tradition that we have today. A judicial opinion that merely says, "This is what the statute says," is not recognizable within our system. But that is exactly what it should say if Scalia's rules apply. The Constitution is incomprehensible without acknowledging that it assumes, refers to, and is steeped in that legal tradition, including the elements of law and equity, judge-made law and statute law, and the methodology by which judges construe and apply statutes. Even assuming, as you claim, that we somehow had to decide whether we were going to continue to apply to this new, supreme law of the land the same type of judging that had previously been applied to statutes, that decision was made, a long time ago, by Chief Justice John Marshall. Who on earth is Antonin Scalia -- a fraud and charlatan if their has ever been one -- to tell us that Marshall had it wrong when he undertook to treat the Constitution as but another form of positive law to be interpreted by judges in a traditional manner so as to decide cases and controversies? Marshall was a contemporary of the Framers and a legal scholar in the era in which the Constitution emerged. He didn't understand what he was doing? Scalia knows better? I do not claim that original intent is the only proper basis for decision. I claim that common law judging takes into account the received text, the historical and social context in which it was written, the utterances and writings of the people who participated in the drafting, both the common meanings of words and specialized terms of art (such as "law and equity"), the consequences for related bodies of law of deciding in a particular way, the implications for the enterprise as a whole of deciding in a particular way, the distribution of benefits and burdens (equity), judicial precedents, including those from other jurisdictions that appear relevant and persuasive, and probably a dozen other things that I have forgotten to mention. Scalia says that we are somehow obliged to construe the Constitution not in accordance with the legal tradition and practices out of which the Constitution arose, which is still the legal tradition and practice that we today apply to the construction of statute law, but according to some rules of his own devise that are utterly ahistorical. Never in the history of Anglo-American law have judges done what Scalia says they must do. As Posner makes clear, neither does Scalia in fact. Leaving aside the strong arguments that Scalia's rules cannot possibly be applied in reality, never have been, and are not now by Scalia himself -- they are but empty rhetorical claims of an authoritative method that does not exists -- on what possible basis are we to accept that Scalia's rules of construction ought to apply rather than the customary methods by which judges in the Anglo-American system of law construe positive law? I cannot think of a single one. There is, quite simply, no authority whatsoever, none, for Scalia's claims about the necessary method of constitutional interpretation to the extent that it excludes any of the historical practices of common law judges when construing positive law. ____________________ I don't care whether there is a line between slagging or non-slagging. Scalia is a charlatan, a liar, and a fraud. Call that what you like, be moved, or not, as strikes your fancy. That is my opinion of him.
- roidubouloi
August 31, 2012 at 7:17pm
Basman: it is and he does, effectively. I don't know the man - Scalia - at all. And, odious thought I consider him as a judge, I have now emotional reaction to him as a person. I judge him, and label him, on the basis of 25 years of studying US jurisprudence, and twenty years as an academic author on interpretive matters. When I call him a charlatan and a knave, I am not being personal. For all I know, like Romney, he is a wonderful family man and probably warm and generous to his friends. Scalia, as a public figure, is a fraud, much as Romney is; each raises cynicism to levels not seen since Nixon. Scalia's contribution is probably the most consistently corrosive of the judicial function in my living and research memory - going all the way back to Lochner. That he presumes to lecture anyone on the judicial technique is already laughable, though given his ego, entirely predictable. That he purports to base his voodoo jurisprudence on a 57-step "textualist" mantra only makes him vaguely less interesting than a 12-step guide to happiness by Dr. Phil. Posner, in the guise of literary criticism, has laid bare a judicial fraud on the same level as Condi's "mushroom clouds" or Brownie's management of FEMA.
- icarus-r
August 31, 2012 at 8:54pm
*"odious though I consider him as a judge, I have no ..." oy
- icarus-r
August 31, 2012 at 8:55pm
Jake- We have had this discussion before. You seem to be under the belief that where there is a positive statutory or constitutional text, there can be no common-law jurisprudence. But the body of case law that develops from judicial intepretation of constitutional and statutory texts is precisely analogous to the body of case law the develops from judical interpretation of precedent. That is all Roid is saying; that the framers understood that the Constitution would be construed by the courts in the common-law fashion. Basman- Textualism and originalism are incompatible because textualism asserts that you need not look beyond the text to discern its meaning. Once you look to the understanding of the text by drafters and ratifiers, you have abandoned textualism. Dhurtado
- NR143296
August 31, 2012 at 11:29pm
Thank you, NR. Far more succinct and clearer than the way I tried to put it, as to both points.
- roidubouloi
September 1, 2012 at 12:34am
"But the body of case law that develops from judicial intepretation of constitutional and statutory texts is precisely analogous to the body of case law the develops from judical interpretation of precedent." It may be analogous, in the sense that prior decisions are generally followed except where new cases lead to legal evolution, but it's not "precisely" analogous, because the source of authority is different. Extra-judicial legal texts command greater deference than prior common law decisions. A judge must be true to them in some plausible sense -- a basic obligation that, as Posner says, "every responsible lawyer" must try to meet, or, at least, be seen trying to meet. Just how to do that, I think, is a question that is not resolved by pointing to our common law tradition, or pointing out that law changes gradually over time in response to new cases, etc., but rather one that has to be addressed directly and with some specificity, especially if you want to discredit a given method on the table. For example, as Posner says, when the spirit or gist of a law, or its obvious intent or purpose, is perverted in a specific case in the name of a literal reading of the text to the exclusion of the rest of Blackstone's "signs" or common sense or reasoned judgment, the legislature is actually "thwarted." This should be a problem for those, like the textualists and originalists, who are ostensibly worried about judicial usurpation of politics -- about the supposedly rampant replacement of the legislature's or framers' will with that of judges. The point that legislative intent is problematic because the group that generated the text is a "many-headed hydra" is a fair one, but the textualists' response overcompensates for that problem by allowing, and even "reveling in," results they say are commanded by the statute but that *nobody* who contributed to its creation would have intended or approved given the chance. My point isn't that these arguments and similar ones made here against textualism are wrong. It's just that I think our common law system is more beside the point than some of you guys do, a frolic and detour, to borrow a common-law phrase. What's an appropriate way to interpret texts, especially constitutional texts where the stakes are high? To answer that question and related ones requires addressing them directly. On the one hand, a constitutional decision cannot be overruled by the legislature, suggesting that judges should be careful, minimal, humble, etc., lest they be seen to overstep their role, lose legitimacy, and perhaps even precipitate a constitutional crisis (where branches of government disagree about constitutional meaning and assert a co-equal right to disagree and to try to put their interpretation into effect, a conflict that the Constitution doesn't clearly resolve). On the other hand, the Constitution itself is extraordinarily difficult to change, probably a touch too difficult (the most important changes required hundreds of thousands of war dead), suggesting that we shouldn't be too strict in interpreting it lest the document be held to resist compelling national need or recognition of individual rights only dimly or rudimentarily understood by the imperfect authors. For example, are we bound by the framers' inability to anticipate the scope and nature of our national and global economy? Are we bound by their prejudices? Few of us want to live under an unworkable or woefully impractical supreme law. The Constitution, as is often said, is "not a suicide pact," which is the main emphasis of the "legal pragmatists," for whom Posner is the most persuasive champion. I hope that we don't want to live under an immoral or unjust supreme law either, which is the main emphasis of the group we would call liberal jurists, which Cass Sunstein labels "perfectionists," associated with some of the justices of the Warren Court, the legal philosopher Ronald Dworkin, and others. (This group, by the way, is not really represented on today’s Supreme Court.) What's more, the Constitution is vague and general and ambiguous on lots of points, it speaks in the language of high principle, and, while old, is meant to be durable, workable, and just over the long haul. For these reasons, I tend to resist the call of those who insist -- even in good faith (and there are some) -- on making our Constitution ancient and small and inadequate to meet the practical and moral challenges of our time. After all, at the most fundamental level, the spirit, gist, and purpose of our supreme law, nicely set forth in a certain bit of text, is to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Is that purpose to be “thwarted” on a technicality? I fear the answer is “yes” if the textualists get their way. I once took a class with Frank Easterbrook -- a stronger and more rigorous and perhaps more consistent and honest proponent of textualism than Scalia. At one point in one of our discussions, I invoked the phrase "let justice be done, though the heavens fall," a phrase understood to be a rebuke to consequentialism. In other words, Do the right thing, no matter what happens. Putting aside the rightness or "justice" of textualism, and taking for granted that Easterbrook believed it to be right and just, I modestly suggested that, in applying his method, he of course would never really let the heavens fall. He arched his eyebrows and said, "Well...," rejecting my assumption. This is the kind of thing that drives Posner nuts. He wants to scream from the mountaintops, as do I, "If the sky fell, it wasn't the right thing to do, was it?!" This is the problem with philosophy, especially legal philosophy, where there are consequences -- one can take it too seriously and become unreasonable. Back to what I take to be the point of disagreement here -- whether we find a persuasive answer to the question of how to interpret legal texts in the existence and nature of our common law tradition. I don’t think so, because textualists will simply rest on the important distinction between the common law on the one hand, and statutes and constitutions on the other, and feel really comfortable doing so. They will seize upon this distinction, luxuriate in it, and bring all of their rhetorical forces to bear in insisting upon it, and not without reason. To see the reality of the distinction, consider how the common law is changed: When a new case brings a prior common law policy into question -- as being unworkable, unfair, inefficient, whatever -- a common law judge decides to change it, and candidly gives those reasons for the change. He will be reluctant to change it, sure, because he subscribes to the policy of stare decisis, but, if the reasons (impracticability, unfairness, inefficiency, etc.) are compelling enough, he will pull the trigger and even a textualist would say, in the abstract anyway, that he's authorized to do so. When, on the other hand, a new case brings a prior *statutory* or *constitutional* decision into question, the judge who is persuaded that that prior decision is wrong must give different sorts of reasons. He feels compelled to find fault not with the prior decision’s *policy* as such, but rather with the prior decision’s *interpretation* of the text in question. Arguing about what a text means is not a uniquely common law activity, and the methods used are not singular characteristics of a common law system. Common law jurisprudence is frankly about the development of policy, whereas constitutional law and statutory interpretation are about the interpretation of something. Unless we subscribe to the somewhat cynical view that “interpretation” is a sham -- simply a less “candid” form of policy-making – then we have to acknowledge the importance of that distinction, one, by the way, that would have been quite familiar to common law lawyers of the time and before. And if we do subscribe to the cynical view, then we are making the textualists’ argument for them, or else we have to be ready to defend a rather gigantic lie.
- JakeH
September 2, 2012 at 2:41am
p.s. Textualism and originalism *are* in conflict, because textualism eschews consideration of original intent, which is the touchstone of originalism. For textualists, "intent" is not part of the law -- the framers or legislators did not enact their "intent." They, enacted, rather, only the text they were able to agree on. Where textualists are originalists, and why Posner uses the phrase textual originalist, is that they emphasize giving words their original meanings -- that is, what they would have meant to the relevant "interpretive community." This isn't a crazy idea. If a law used the word "table," and at the time, "table" meant "chair," we would find that important. Figuring out what the words used meant to the relevant interpretive community requires *some* work, which is why a textualist decision goes beyond the text -- to look at, say, historical dictionaries or historical usages of relevant words and phrases among the drafters' audience.
- JakeH
September 2, 2012 at 3:22am
I still think you are missing the point, Jake. Let us skip the question of nomenclature, what "common law" refers to. Let us assume that the methodology by which Anglo-American courts construe positive law, statute and legislative acts, is different from the manner in which they administer judge-made law (although I think, along with dhurtado, that there is relatively little difference between the way a court addresses black letter law, the distillation of judicial decisions, and positive law, the acts of legislatures). Let us also assume for the sake of argument that textualism/originalism in the sense that Scalia uses those terms is an executable methodology (although I think this is clearly false and Posner does a good job of showing that it is nonsense). The fact remains that, by whatever name, there was at the time of the adoption of the Constitution a very long history of judicial constructions of positive law by Anglo/American courts. One can discuss at great length just what this methodology consists of, but it certainly includes an established division of labor in which statutes are not understood to be self-executing but are administered by the courts and it is the courts, not the legislature, that decide how to apply the law. As or more important, the method by which courts, then and now, interpret positive law is radically inconsistent with either textualism or originalism, although both the text and the inferred original understanding, of drafters and or of contemporaneous people, are surely a large part, but by no means the only part, of what judges consider. It is this very long established set of judicial practices, long ante-dating the Constitution and continuing in an evolving but unbroken tradition to this day, with which Scalia is at war. So, the question arises, by what authority does Scalia claim that the method by which the Constitution is to be construed must be radically different than the manner in which Anglo-American judges? There is nothing at all in the text of the Constitution that is relevant. Indeed, as I have pointed out, there is nothing in the text of the Constitution that suggests that the Constitution is to be applied and interpreted by the courts. This must be inferred, as Chief Justice Marshall did, from American legal history and the supremacy clause, which states that Constitution is the "supreme law," hence a law. If Scalia cannot cite the text for his claims, then perhaps some "original intent?" The original meaning of the words is unavailing because there is no relevant text. Thus, we are faced with the irony that Scalia must derive his authority from the very methods that he claims to reject. But let us pass by that too. The best evidence we have of the original intent of the Framers, as members of an extant legal community, is the behavior of the judges who were contemporaneous with the Framers. Marshall wrote, in essence, that the Constitution is enacted law and the courts will proceed to interpret in the manner in which American courts interpret enacted law. End of story. There is no reason at all to doubt that Marshall's understanding correctly reflected the "original intent" as almost anything else would be incomprehensible in light of Anglo-American legal history. Scalia appears, with nothing at all to cite as authority, to claim a methodology that is completely unmoored from the entire history of American jurisprudence. There is no reason to take the man and his claims seriously. Beyond that, it is quite apparent that Scalia is either a fool or a fraud. Are we really to believe his claim that Brown v. Board of Education is a decision grounded in his version of textualism or his version of originalism, or his bastardized combination of the two? That is patently absurd. Unless Scalia is a fool, the only explanation for this preposterous claim by him is that he knows full well that if Brown is irreconcilable with textualism/originalism of the Scalia type, then Brown does not fall. Rather, Scalia himself would be completely discredited as a Bork-radical utterly out of touch and out of step with centuries of American jurisprudence, which is exactly what he is.
- roidubouloi
September 3, 2012 at 1:41pm
"So, the question arises, by what authority does Scalia claim that the method by which the Constitution is to be construed must be radically different than the manner in which Anglo-American judges construe positive law?" Oy
- roidubouloi
September 3, 2012 at 1:43pm
I agree with you Roid, but, on a side note, I have always wondered why it is claimed that judicial review is something that was sired by Justice Marshall and not the Constitution. Article III, Section 2 provides that, "The judicial Power shall extend to all Cases, ... arising under this Constitution, ..." How would a court decide a case arising under the Constitution without interpreting and applying the Constitution? Even if that is possible, why wouldn't deciding cases "arising under [the] Constitution entail interpreting and applying the Constitution? Dhurtado
- NR143296
September 4, 2012 at 2:42pm
Roid, I think we're repeating ourselves and talking past each other. I basically agree with you, except on the common law point, for the reasons I've given that you haven't really addressed. If we put that issue aside, as you suggest, then I'm not sure we're disagreeing about much. I suppose I give textualism a little more credit than you do and take more seriously their stated concerns than you do -- having been exposed to intelligent, honest arguments for it -- but I'm not ultimately persuaded by it. I also think dhurtado makes a good point about Marbury v. Madison. It's wrong to say that there's no text relevant to resolving that issue -- there's Article III and the supremacy clause. Marbury's conclusion requires "inference," sure, but I don't think textualists are opposed to inference.
- JakeH
September 4, 2012 at 4:33pm
dhurtado, I basically agree with you. I think to attribute to Marshall the notion of judicial construction of the Constitution as if he invented it out of whole cloth (as Scalia invents his textualism/originalims out of nowhere) is a gross misreading of legal history, although Marshall penned the seminal decision. But, if one understands the structure and history of the American legal system, the result not only makes sense but seems almost inevitable. The Constitution is a law; courts construe the law, both positive law and judge-made law, and apply it to resolve cases; the Constitution is declared to be the supreme law. Ergo, laws or other official acts inconsistent with the supreme law, as construed by the courts in the manner in which common law courts construe the law, must be void. For a common law lawyer, one versed in the nature of practice in our common law system, it is almost self-evident that to decide cases under the Constitution it must be interpreted and applied. More important, however, is that the judicial Power includes the power to decide cases under the Constitution. This most likely appeared self-evident as the meaning of "law" in our system is something administered by courts. If the Constitution were not to be administered by the courts, then it would not have been a "law" as that term was understood by common law lawyers such as the drafters. However, I don't think you can derive that result from the literal text or from the plain meaning of the text. Certainly, there has to be some provision of the Constitution being construed, that is, some text that is the starting point. But you cannot make any sense out of the term "judicial Power" by looking up the words "judicial" and "power" in the dictionary. They only make sense as a reference to the entire system of courts and the manner in which they function. Thus, the judicial Power was defined not by the words but by the long-established custom and practice. And one must infer that it is this to which the Framers were referring, something they do not say explicitly. Accordingly, I think it is impossible to derive the power of the Supreme Court to decide whether official acts are void due to conflict with the Constitution if one is applying Scalia's methods. One might for example think that the opinion of the court on a Case under the Constitution is advisory to the other branches rather than itself a decision having the force of law. And one does not know from the text how the court is supposed to go about making its decision. But if one integrates constitutional cases into the established custom and practice, then Marshall's conclusion seems all but inevitable. This, however, requires going well beyond the text to an understanding of the practices to which the text adverts. For Scalia, this is ostensibly impossible because the source of meaning then extends beyond the text of the document. I do think that textualists are opposed to inference. Otherwise, what the hell are the talking about? Jake, it seemed to me we disagree more than nomenclature. And, if not, then I really do not understand what point you are trying to make. By whatever name, there is in our system a long history of judicial construction of positive law. The manner in which this is done does not look anything at all like Scalia's textualism/orginalism. Ergo, in the absence of some authority, of which there is none, he is just making it up to suit his own ideological preferences. He himself is far more guilty of the judicial impropriety he attacks, imposing his own ideology unmoored from the text of the law, as he has invented his system out of nowhere. Contrariwise, those he attacks can point to a long tradition of judicial construction of positive law of which they are a part.
- roidubouloi
September 4, 2012 at 8:27pm
Thanks Roi and Dhurtado and sorry for my absence. I understand the tension between looking beyond the text for the original meaning of enacted words but why isn't that a paradox rather than a logically fatal contradiction undermining the very coherence of textualism? First, originalism is only an aspect of textualism not exhaustive of its doctrinal content. So once the language is understood in its common usage then the arguments against extra textual divination stand awaiting a different critique. Second, and this is a point Posner makes implicitly, the criticism of this paradox in textualism recedes the more modern the enactment. So one solution to the paradox with respect to indeterminate meaning owing to some language's misty past may be, as Posner adverts to, suggested by Easterbrook as quoted by Scalia and Garner: ...Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” Sorry here if I'm retreading old trod ground but that case law will develop constitutional meaning in a common law fashion is a different proposition from the construing the meaning of enactments. The common law as such evolved law without legislative enactment as a base line. Therefore the textualist argument against judges making law presumes legislation which judges are not to supersede. In the common law of course judges of equal or coordinate jurisdiction could divert from each other with utter impunity until the law got settled by a higher court. A rough analogy to the common law and textualist argument against legislating is the obligation of common law judges to follow the rulings of higher courts binding them. But I can't see how the common law as such bears relation to statutory construction, which is what textualism is all about.
- basman
September 5, 2012 at 7:46pm
Thanks Roi and Dhurtado and sorry for my absence. I understand the tension between looking beyond the text for the original meaning of enacted words but why isn't that a paradox rather than a logically fatal contradiction undermining the very coherence of textualism? First, originalism is only an aspect of textualism not exhaustive of its doctrinal content. So once the language is understood in its common usage then the arguments against extra textual divination stand awaiting a different critique. Second, and this is a point Posner makes implicitly, the criticism of this paradox in textualism recedes the more modern the enactment. So one solution to the paradox with respect to indeterminate meaning owing to some language's misty past may be, as Posner adverts to, suggested by Easterbrook as quoted by Scalia and Garner: ...Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” Sorry here if I'm retreading old trod ground but that case law will develop constitutional meaning in a common law fashion is a different proposition from the construing the meaning of enactments. The common law as such evolved law without legislative enactment as a base line. Therefore the textualist argument against judges making law presumes legislation which judges are not to supersede. In the common law of course judges of equal or coordinate jurisdiction could divert from each other with utter impunity until the law got settled by a higher court. A rough analogy to the common law and textualist argument against legislating is the obligation of common law judges to follow the rulings of higher courts binding them. But I can't see how the common law as such bears relation to statutory construction, which is what textualism is all about.
- basman
September 5, 2012 at 8:38pm
Welcome back, basman. I think we have to find our way past the essentially irrelevant question of what is and what is not common law. I think of it as the system of Anglo/American jurisprudence in all its aspects. You and Jake may think of it as judge-made law, its earliest meaning. But there is no importance to this in the context of the current discussion. Whether you consider it part of the common law or something else, there is a long history of English and then American courts construing enacted law, alongside their construction and application of judge-made law. Along with dhurtado, I tend to think there is little if any difference in the methodology of interpreting and applying statute and the methodology of applying crystallized judge-made law – so-called Black Letter law. But this too is of no real importance in the current context. Whether or not it is similar to what Anglo/American judges do with judge-made law, there is a long history, custom, and practice of construing enacted law, and it does not resemble Scalia’s textualism/originalism. Yes, the Anglo/American considers first the text, then the understanding of one or more interpretative communities, then the legislative history, then the purpose to be served, then the coherence with the broader system of law and justice, then precedent, both within the jurisdiction and outside the jurisdiction, and other matters as well. I am careful to say one or more interpretive communities because even that question, meaning to whom?, must be determined by the court, explicitly or implicitly. With respect to statute, we require that criminal statutes communicate effectively to the public meant to comply. But what about tax laws? They are incomprehensible to the lay community and incomprehensible to most lawyers who are not themselves tax practitioners. Isn’t the tax law, replete with terms of art and references that no one without a tax education can possibly make sense of, addressed to the community of tax law practitioners as the interpretive community? ERISA, the Employment Retirement Income Security Act, is so arcane that not only are the statute and regs pretty much incomprehensible to anyone other than an ERISA lawyer, but even the explanations offered by an ERISA lawyer are often incomprehensible and must be reduced to a set of concrete requirements. Then we have statutes directed to government agencies, where the agency, together with practitioners in the field, form the interpretive community. Indeed, under federal law, the interpretation of the agency charged with administering a statute is given great deference by the courts. This, not only is this the interpretive community, but the agency is in many instances the de facto decider. Do we really believe that the “common meaning” is what should govern? How many lay citizens at the time of the adoption of the Constitution do you think knew what a bill of attainder was? How many could have given a coherent explanation of “the judicial power?” Were the states really ratifying the words or ratifying the work of the drafters, relying on them and the compromises they reached? Finally, and most important is this: Given the centuries long tradition of Anglo/American courts construing, glossing, and applying statue law, any legislature in our system adopts any law with the expectation that the courts will do so. Thus, the “judicial power” as it exists in our system, elaborated by centuries of custom and practice, is an assumed part of any legislative enactment. Contra Scalia, nothing in our system suggests that the words of a statute as would be understood by some “reasonable person” are to control the outcome. Quite to the contrary, the expectation is that the words will form the kernel upon which our courts will operate in a traditional manner. Beyond the “purpose” of a particular enactment, this is the concrete intention of the adopters, that what they adopt will be interpreted by the courts and that this is their job. Marshall’s contribution was simply to apply this principle to the Constitution, as but another law. The contemporaneous (with the adopters) expectation was that the Constitution, as positive, enacted law, would be construed in the same manner as other positive, enacted law -- bearing in mind the unique difficulty of amending the Constitution as opposed to a statute, where legislative acquiescence is assumed if the legislature does not adopt an amendment negating or modifying a judicial decision. As this is nearly impossible with respect to the Constitution, the court must consider systemic risks in a somewhat different manner in constitutional cases because its word will more than likely be the last word. As to your point about different outcomes in different jurisdictions, this occurs fairly commonly in our federal system. Different Federal Circuit Courts of Appeal may reach different conclusions when construing a federal statute. The result, literally, is that the same federal law text leads to different law in different places. This is one of the reasons the Supreme Court takes a case, to resolve such differences, but they sometimes persist for a long time. I do not see how Scalia can justify abandoning the contemporaneous understanding of how the Constitution would be construed in favor of rules of his own that are unprecedented in our legal history. He has no authority for his rules and for the upending of the centuries-established tradition, custom, and practice by which positive law is construed. He is just making it up to suit his own ideological agenda. That one quickly concludes that his system is incapable of execution according to its terms is a whole different, and in my opinion unimportant point, because our legal history tells us something quite different about constitutional interpretation. It is always the living community that chooses, as it should be. We honor inherited law and interpretation because it serves our need for stability to do so, but meaning evolves as circumstances evolve. In our system, our judges are the people tasked with working through the implications of the evolution. That is every bit as much a part of the Constitution as the words on the page, indeed, moreso. The words are words, they system is the living organism. Scalia wants to strip judging, in the established manner, out of our system. By what authority? There is none. And if there is no authority, why pay any attention to him?
- roidubouloi
September 6, 2012 at 12:16am
Roi, thanks for your full and thoughtful answer. I'll pass over the point about the common law, save for some concluding comments, and save to say that what I'm saying about it in fact tracks what Scalia and Garner say in their introduction, noting that America's is a common law jurisdiction and that that tradition of judge made law bleeds over into, all to the bad from their perspective, some judges feeling they can make law with impunity when construing and applying statutes and the Constitution. Leaving the common law aside, and assuming the agreed upon meaning of enactment language, the questions over, as you put it, ...the legislative history, then the purpose to be served, then the coherence with the broader system of law and justice, then precedent, both within the jurisdiction and outside the jurisdiction, and other matters as well.... begin. For the textualist will argue against legislative history, against a certain notion of purpose, perhaps against a certain notion of the broader system of law and justice, certainly NOT against precedent, of course, within the jurisdiction, but, certainly against precedent outside the jurisdiction. The foundation of the textualist argument is that judges, save for the outlier notion of elected judges, are are appointed, have no legislative function, are to be seen in contradistinction to the legislature, do not, are not to, reflect the will of the people, and have the narrow role of interpreting and applying law. When judges depart from dealing textually with what is before them, they court the danger of substituting their judgment and policy preferences for the legislature's, which exercise is inimical to democracy in an inversion of their constitutional role in a system of checks and balances. So, reviewing legislative history is necessarily indeterminate and at a remove from, and a danger laden alternative to dealing with the text itself. I see an analogy 'on this point, and this analogy struck me generally as illuminating when I read Scalia a s Garner's Introduction, to literary criticism and interpretation . One might study earlier drafts of a text, not to mention the author's statements about his text and so on. But what ought to govern is the text itself, the other stuff being a distraction from it and analytically separate from it. Legislative purpose can only be derived from the text and must accord concretely with the text, the argument is, and must not be raised to a level of abstraction sufficiently removed from the text such that purpose can manipulated to reach an adjudicated conclusion overdoing what that enacted language points to. Purpose beyond what the text reveals, and add to that the court measuring consequences and considering effects, are beyond the court's competence and involve the court considering matters the legislature has already considered and factually concluded. It's for the court to construe and apply and not second guess the legislature. As far as the broader system of law and justice is concerned, the first makes sense narrowly conceived and the second is a honey pot of danger. The narrow conception involves the presumption of legislative coherence amongst all enactments and where contradictions surface they must be resolved and the language construed within the context the subject statutory language gives scope for, with resort had to the applicable presumptions Scalia and Garner set out, and which will sometimes conflict with each other. There is, I'd argue, no broader conception of resort to the broader system of law here that's suitable. As broader conceptions of law, and worse, justice, become pretexts for judicial legislating overriding enacted language. And so precedent within jurisdiction is of course to be considered and where necessary followed, and examples from foreign law are to be foregone. I wouldn't have thought your reference to exotic and specialized statutes and the idea of terms of art serve your argument. That's because these terms are legal jargon in the best sense of that phrase, specialized terms defined in the enactment itself or in the law generally. They would be amongst the textualist's Exhibit A for having the court confine its inquiry to what the language as a species of legal jargon means and applying that meaning as an intra text ex exercise. A line of argument running through your comment centers on the idea of interpretive communities as somehow undermining the textualist argument. I think the idea of an interpretive community or communities is a good one. But why does it undermine the textualist argument? If the populace didn't know what a bill of attainder was at time of enactment, how does that hurt the argument. The phrase would have had a discernible set meaning and that meaning would have been understood to be what the enactors meant by that phrase. Respectfully, that's why I think, as with terms of art and specialized legal jargon, the ideas of relevant interpretive communities strengthen the textualist argument rather that cut against it. Where narrow usage is historically determinate, Easterbrook's concern over linguistic meaning lost to the mists of past time is not as likely to arise. I'll end this, not doing justice to your excellent concluding points, by getting back, in fact, to the issue of common law judges' function. As I understand your last line of argument--the argument from Madison and Marbury are beyond my immediate ken, and it's that, immediate ken, I'm going by here--it's that the legislature passes law expecting courts to do their common law thing which is indistinguishable as between courts evolving the law without a statutory base line and interpreting and glossing enactments. I don't understand an unequivocal tradition of the latter--there are obviously pockets of it, as in Canada's and England's "unwritten bills of rights"-- in common law jurisdictions not existing in contradistinction to the former. In countries without a written, entrenched guarantee of rights, England, Canada till 1982, for example, the tradition and doctrine of parliamentary supremacy mitigates against that unequivocal lack of a difference between the two cases. Finally, I have no doubt that there's s powerful textualist reading to be given to Marshall in Madison v Marbury. Best I can do. I hope I haven't omitted too many of your points. As for no doubt the typos and grammatical screw ups please cut me some slack, I don't have the will to edit this.
- basman
September 6, 2012 at 5:01pm
"They would be amongst the textualist's Exhibit A for having the court confine its inquiry to what the language as a species of legal jargon means and applying that meaning as an intra text ex exercise." But Basman, no one can discern the meaning of the tax code from the text. It is impossible. One can only discern the meaning if one understands a huge body of practice and case law that surrounds the text. A textualist reading tax law would be about like reading Martian. "The phrase would have had a discernible set meaning and that meaning would have been understood to be what the enactors meant by that phrase." With just this seemingly obvious point, you are already at odds with Scalia who insists that "what the enactors meant" is irrelevant. Finally, and most importantly, you keep playing Scalia's bait and switch with the common law. Forget about judge-made law. It is also irrelevant. The common law has a centuries old tradition of the interpretation of case law that is not even remotely limited to the text and what someone with naught but a dictionary would make of it. If the concrete expectation and intention of the Framers was that courts would continue to do what they had done for centuries in interpreting positive law, and the concrete expectation of the public was that the familiar system of law and justice was being carried forward, with the same division of responsibilities between courts and legislatures in essentially the same manner, where on earth does a Scalia get the authority for a radical undermining of a system that has endured for centuries based on nothing more than his flimsy arguments about what judges might do, including radical judges like Scalia who do the most radical things while claiming they are merely applying the inevitable interpretation of the text? Even if Scalia were right about the dangers, this is the system that this country adopted, including the exercise of certain kinds of powers by unelected judges. There are many features of the Constitution that are undemocratic. Does Scalia claim that the threats to public will allow the Supreme Court to reapportion senatorial seats? Does he claim that the Framers and the public could not adopt a system in which appointed judges interpret positive law according to the common law tradition? And if that is the system we did adopt, where does Scalia get off insisting that he is entitled to do something else and everyone must follow him over that cliff (leaving aside that he is a fraud who does not in his actual judging do anything remotely like what he claims to do)?
- roidubouloi
September 6, 2012 at 7:24pm
"The common law has a centuries old tradition of the interpretation of statute law that is not even remotely limited to the text . . . " My bad. You are not the only one who can make typos.
- roidubouloi
September 6, 2012 at 7:25pm
And what of this absurd and ahistorical abhorrence of "foreign law?" The law of California is foreign to New York and to the federal jurisdiction. It has no more binding authority in New York than the law of Botswana. Indeed, the law in the 9th Circuit is not binding on the 2nd Circuit. Yet, state and federal judges routinely cite the non-binding law of other jurisdictions that have considered similar questions, not because it is binding, but because it is illuminating. As soon as one concedes that the intention of the enactors as to meaning is important, it would be derelict not to consult legislative history in order to understand what they had in mind, what they were thinking about, what they were trying to accomplish.
- roidubouloi
September 6, 2012 at 7:44pm
In my opinion the argument parallels one arguing that anthropologists examining early hominid bones should do what early hominids did, and gnaw on them.
- drbob
January 15, 2013 at 2:51pm