SEPTEMBER 20, 2012
In the September 13 issue of TNR, Richard Posner reviewed Reading Law, a new book by Supreme Court Justice Antonin Scalia and Bryan A. Garner. Soon afterwards, TNR published an exchange between Garner and Posner about the review. Here, Posner responds to the latest critical response by Antonin Scalia:
Reuters invited me to respond to a statement made by Justice Scalia in an interview of him by Stephen Adler on September 17.
The statement comments on a purported statement of mine in a review in the New Republic of Reading Law by Justice Scalia and Bryan Garner. I say “purported statement of mine” because what Mr. Adler said I had said was that “Justice Scalia actually resorts to legislative history in” District of Columbia v. Heller. I didn’t say that. I said that “when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions—as he did 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.” There is no question that Scalia in Heller was looking for the original meaning of the Second Amendment—that is his method of constitutional and statutory interpretation, the method defended in Reading Law.
In the interview Scalia responded to Adler’s characterization of my statement as follows: “Only—only in writing for a non-legal audience could he [Posner] have made that argument. Because any legal audience knows what legislative history is. It’s the history of the enactment of the bill. It’s the floor speeches. It’s the prior drafts of committees. That’s what legislative history is. It isn’t the history of the times. It’s not what people thought it meant immediately after its enactment. It’s not what laws were—were continued in effect despite this. That—that is simply not legislative history. And and—and to say that I use legislative history in how—is—is simply, to put it bluntly, a lie. And—you can get away with it in the New Republic I suppose, but—but—but [laughter] not—not to a legal audience.”
I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment. He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.
Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598–599, 603–605.
So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia “actually resorts” to “legislative history” in its narrowest sense (“drafting history”). But I did not say that.