A Matter of Interpretation

Rating:
Summary: Defender of America's Constitutional Order, part 2.
Review: Herein lies the central problem of The Living Constitution: If a written constitution's guarantee's are mutable through judicial interpretation, then they mean nothing at all and offer no enduring protections. The "whole purpose [of a written constitution]," Justice Scalia reminds us, "is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Advocates of The Living Constitution insist that its evolution will always result in greater, not diminished, personal freedom. Setting aside the question of why liberty should always trump authority in their primeval battle, the historical record refutes this assertion. Not only has the Court eviscerated constitutional property and contract rights -- and Scalia suggests, it may do the same to the Second Amendment's right to keep and bear arms -- it has moved on to truncate the Eighth Amendment's Confrontation Clause, holding that in some instances a criminal defendant no longer has the right to confront his accuser, despite the express command of the Constitution to the contrary. Unmoored from the Constitution's text as historically understood, the Court is free to decide, for instance, that modern America has too much political speech and rewrite the Free Speech Clause to provide for congressional regulation, much as the minority leaders of both houses of the Congress now propose.

When a written constitution's guarantees are but wet clay in the hands of willful federal judges, law depends on caprice and we inescapably become a nation of men, not laws. For, as Justice Scalia warns, "When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought mean . . .." This is equally true in constitutional adjudication as in statutory interpretation, except that constitutional decisions are vastly more difficult to reverse. The Constitution ceases to mean what it says, ceases to codify certain prescriptive rights slowly asserted and established against the claims of the crown and its successors, and comes to solely reflect the prejudices of contemporary federal judges, which are unlikely to be reflective of broader social consensus.

Russell Kirk has written, "Not by force of arms are civilizations held together, but by the threads of moral and intellectual belief. In the hands of the Fates are no thunderbolts: only threads and scissors." These threads are necessarily woven from below, through the slow formation of social consensus; when consensus is broad and deep enough that something is thought fundamental to liberty, it is then formally added to the Constitution through Article V. But when judges take it upon themselves to legislate and amend through judicial interpretation outside of Article V, as Professor Glendon points out in her elegant commentary, "democratic elements in our republican experiment atrophy. American men and women not only are deprived of having a say on how we order our lives together, but we lose the skills of self-government." This doubtless fosters the cynicism and alienation from authority which is seen everywhere today.

Early in this century Justice Oliver Wendell Holmes famously accused his brethren of trying to inscribe Herbert Spencer's economic theories into the Constitution. Today's activists are more likely to be influenced by the writings of John Stuart Mill and John Rawls, and take as their program the prohibition of expressions of traditional morality in American law and the institution of wider protections of avant-garde social behavior, in addition to eliminating whatever restraints remain on congressional legislative power and systematically boring holes into the walls separating our tripartite form of government, thereby abetting the growth of the administrative state. The increasing shrillness of debates surrounding issues the federal judiciary has preempted -- abortion and homosexual rights, among many others -- suggests that judicial activists are dangerously wielding the Fates' scissors, rending an already threadbare social fabric in their push for great and faster "social justice." As Justice Scalia points out, "Judges are not [] naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite."

Generally, conservatives today fear that the Constitution will be transmuted into an instrument of oligarchic rule, but Justice Scalia fears the increasing politicization of our fundamental law will lead to rise of a fearful populism: "If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that." Here Scalia is at his weakest. The appointment and confirmation process, like the legislative process, is more easily manipulated by a few highly motivated activists wielding influence well beyond their numbers or reasonableness than by the unwashed masses. Popular control would require political interest and exertion that the very practice of judicial activism militates against. Professor Glendon wisely asks, "Which is more likely: that unruly majorities will have their way? Or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise? Whom should we fear more: an aroused populace, or the vanguard who knows better than the people what the people should want?"

Perhaps judicial restraint is the true Lost Cause of American history. The last five Republican presidents have had little effect on the decisions of the Supreme Court or the culture of the law; indeed, many of the greatest judicial radicals have Republican markings (Warren, Brennen, Blackmun). But Justice Scalia's masterful essay is not in vain. For, as T.S. Eliot has written, "We fight for lost causes because we know that our defeat and dismay may be the preface to our successors' victory, though that victory itself will be temporary; we fight rather to keep something alive than in the expectation that it will triumph." We are fortunate in this decadent legal age that one jurist still contends gamely against the rot.

Rating:
Summary: Recommended, but with reservations.
Review: I assume you have seen a description of the book already. The book is good enough to be recommended overall, but there were some disappointments. First, the justice does not stay long on his professed topic, the interpretation of statutes, but goes over into constitutional interpretation. Those who make replies follow gladly, and there is really little on the whole about statutory instead of constitutional interpretation. Moreover, the justice did not make it clear enough to me how his textualist philosophy differs from literalism, which he explicitly disavows. Also dissappointing is that I think the justice could have made a much stronger case for what I do glean to be his philosophy by invoking legal principles already understood when the constitution was written, and especially by invoking Justice Story's brilliant decision in Martin v Hunter's Lessee. In that decision rules of constitutional interpretation are stated clearly and authoritatively, and are much along the lines of what Scalia advocates. Lastly, Justice Scalia's essay does not measure up to the keenness of insight and language he shows in his best dissents, though there are some good moments. Despite these drawbacks, it is a very thought- provoking work and its brevity gives one less of an excuse for not reading it. It is largely free of technical vocabulary and there are no arcane discussions.

Rating:
Summary: Not your father's judicial interpretation.
Review: I'd like to mention, first of all, what this book it not. It is not for the casual observer of the American judicial system. Justice Scalia gives a probing examination of various methods used in Constitutional and judicial interpretation. If the reader is not consumed with learning law, or delineating the intent of the Constitution, this book will probably be a major disappointment.

On the other hand, if you have a solid foundation of knowledge on the judiciary and the U.S. Constitution, you will enjoy this book and will learn a great deal of what Justice Scalia has to offer. Scalia offers up a 50 page paper on the various methods of judicial interpretation, each methods strengths and weaknesses, and the how and why of whether or not each method is viable.

Scalia's paper is then cross-examined by Ronald Dworkin, Mary Ann Glendon, Amy Gutmann, Lawrence Tribe and Gordon Wood. Scalia then offers up his rebuttal and I believe, strengthens his theories of judicial interpretation. I am not going to go into my own how's and why's, as I am a fan of Scalia's and would rather allow the reader to reach their own conclusions.

Whether you like this book, or hate it, one thing is for certain, you will come away with a much better knowledge of the U.S. judicial system, how it reaches some of its conclusions, and what the consequences of continuing with current methods of judicial interpretation will be on our country.


Rating:
Summary: An Insightful Discussion
Review: In this tidy book, Justice Scalia puts forward his theory of jurisprudence and takes on the subject of judicial philosophy and what he calls the modern movement of judicial activism. He begins by giving an overview of the history of common law and judicial review, in which he contends that judges historically respected stare decisis - that is, previous rulings. Only in modern times, with the rise of democratic activism, has the desire of judges to "make law" become a problem of significant proportions.

Scalia then gets to the heart of his argument - that the role of the judge is not to ascertain the intent of legislators, but rather to ascertain the meaning of the words contained in a particular document. In this sense, he a textual purist compared to activists who will search out the meaning of particular pieces of legislation by evaluating legislative history, popular press, Congressional record, etc. He concedes that language must be interpreted, but he argues that there is a disciplined approach, and a liberal approach. The disciplined approach he supports would evaluate text within the notion of reasonable interpretation, "placed alongside the remainder of the corpus juris."

"Government by unexpressed intent is simply tyranny," Scalia argues. "That seems to me the essence of the famous American ideal set forth in the Massachusetts Constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us."

Scalia argues that the fact that some texts bear multiple interpretations does not sink the enterprise of textualism. The divide on constitutional questions is not between what the framers intended and what they wrote, but rather between original meaning and current meaning. Scalia argues it is precisely the threat of abolishing cherished rights that makes original meaning important - it is a protection against those, (say Nazis) who would seek to impose a new order or new interpretation of acceptable governance. He argues that the notion of a "living constitution" has narrowed the straits of American freedom, not expanded them. The prevailing mood may or may not be just in the eyes of history, but leave that to the legislators and the great debates among thinkers and politicians; don't seek to encode today's moods in tomorrow's constitution through judicial activism. The avenues for changing the constitution and expanding its purview are well known -- otherwise, leave legislating to the legislatures.

Tribe and Dworkin offer the most interesting rebuttals. Dworkin seeks to root constitutional interpretation in broad principles of understanding and rights; Tribe concedes he has no theory of jurisprudence, other than he finds it difficult to accept the certitude of either Dworkin or Scalia that they have the right interpretation. His is a strange argument. Scalia never says the Constitution does not bear multiple interpretations, but he does argue for a more disciplined approach, in which rights are not found willy nilly in the minds of judges and then imposed on the original document by which we are governed. One annoying aspect the book: Tribe responds both to Scalia's original essay and his counter rebuttal within the first rebuttal -- before we have even read Scalia's response. This got a tad confusing and did not add much to the overall discussion.

Rating:
Summary: Antonin Scalia: Self-Hating Judge
Review: The centerpiece of this excellent book is an essay called "Common Law Courts in a Civil Law System," where Justice Scalia outlines and defends his theory of statutory and constitutional interpretation. The second part of the book has reactions from three law professors and an historian. Scalia then responds in a (testy) Afterwards that suggests that he doesn't take criticism well.

Scalia, a judge, believes that judges seek to grab power by covertly making laws. Prior to the 20th century, they made laws by manipulating common law precedents in the guise of "interpretation." The adoption of the Constitution and the growth of written laws should have ended this chicanery but didn't -- judges used the concept of "legislative intent" to evade the clear meaning of statutes and invented the notion of an "evolving constitution" to rewrite constitutional law as they saw fit.

To combat these evils, Scalia wants judges to decide cases by applying the "original meaning" of a statute or constitutional clause -- a strategy he calls "textualism." He has many intelligent things to say about statutory interpretation. Unfortunately, his theory of constitutional interpretation is a mess. Nothing in the text of the Constitution endorses "textualism" or any other rigid interpretive approach; on the contrary, the document's many vague, open-ended clauses made it inevitable that courts would create a "common law" of the Constitution. Historical investigations into "original meaning" may not yield certain, non-manipulable results, as shown by the disagreements among historians in this area. Clauses such as the First Amendment may not have had a clear "original meaning" at all.

No one in 2003, not even conservative jurists, really wants the country to be ruled by the "original meaning" of the Constitution. Freezing the Constitution in the understandings of 1791 or 1868 would only lead to permanent divisive pressures to amend the Constitution in ways that would probably horrify conservatives like Scalia. The Justice knows this. He accepts the legitimacy of stare decisis as an exception to textualism, even though it requires judges to uphold "wrong" Constituional decisions. He also knows that courts grappling with novel areas like TV broadcasting will find little guidance in the "original meaning" of the First Amendment: as Scalia concedes, "In such new fields, the Court must follow the trajectory of the First Amendment" -- "trajectory" being Scalia's euphemism for a Constitutional "common law."

The biggest disappointment is Scalia's failure to give an historically-informed, "inside" view of how the Supreme Court adjudicates cases, weighs political and legal factors, and adapts the Constitution to changing social circumstances in a way that preserves the Court's legitimacy. This would have given the reader a basis for deciding whether or not our affairs are sensibly arranged. Instead, Scalia reverts to the cliche that judicial lawmaking is undemocratic. He's right, it is, big deal. So is the Senate. So is the electoral college. And so are many other exceptions to pure democracy that Americans have put up with over the centuries. The question is not whether a limited judicial role in lawmaking is undemocratic. The question is whether it is bad.

To answer that question, we need to know how institutions function and interact in practice. Scalia fails on this score, reverting to cliches rather than analysis. True, federal judges are unelected -- but they are also above the fray of everyday politics, do their business case by case, give reasons for their decisions, and are subject to long-distance political control through the appointments process. Legislators, on the other hand, are indeed elected by the voters -- but they are also corruptible, short-sighted, subject to sleazy pressures, and unrepresentative of the electorate (how many black women are in the Congress?). Scalia should have discussed these institutional realities. Instead, he grinds an axe on behalf of a theory of adjudication that has never been followed in practice and never will be -- least of all by him.

"A Matter of Interpretation" is brief, thought-provoking, and jargon-free. The subject matter is important. It deserves a rating of five stars. I gave it only four because Scalia himself deserves only three.

Rating:
Summary: Defender of America's Constitutional Order, Part 1.
Review: Thirty-one years after the resignation of Earl Warren and the ascension of Warren Burger as Chief Justice of the United States, judicial activism continues apace. The signs are everywhere today in the headlines: One day we read that the people of California that they cannot deny illegal aliens non-emergency welfare benefits, the next day that they cannot refuse to take account of a person's race in public education and hiring; the day before last, that the people of Arkansas cannot limit the terms of their own congressional representatives; thereafter, we learned that the people of Colorado cannot constitutionally withhold privileged legal status from homosexuals. Day by day the republican ideal of the American constitutional order erodes as evermore precincts of our politics and policy are drawn under the superintendence of what Nathan Glazer has called the Imperial Judiciary.

The present moment is auspicious for an affirmation of judicial restraint in a democratic society increasingly enveloped by a juridical ethic that the federal constitution is an "evolutionary" -- perhaps revolutionary -- document, the meaning of whose provisions are determined principally by our law-trained elite -- lawyers, law professors and judges. Antonin Scalia, Associate Justice of the Supreme Court and America's foremost conservative jurist, has done just that in A Matter of Interpretation: Federal Courts and the Law, a thin volume that contains his lively and lucid defense of textualism and originalism in constitutional interpretation, along with the commentary of four academics -- Laurence Tribe, Ronald Dworkin, Mary Ann Glendon, and Gordon Wood. Swords ring clearest when the Justice responds to his critics in a concluding essay, in parts sharp, witty and sound. No less than Judge Robert Bork's 1990 bestseller The Tempting of America, Justice Scalia's essay and response to his critics is easily accessible to the general reader.

Judicial activism is a term of abuse -- in some quarters, approbation -- almost as often used as misconceived. A favorite trope of the juridical left is that conservative jurists and academics are in fact the true radicals, intent on effacing at least the last forty years of development in constitutional jurisprudence. This, of course, is a Merriam Webster kind of conservatism, one that conserves the status quo, be it decadent or virtuous. The interpretive philosophies of originalism and textualism espoused by Justice Scalia and others, however, are calibrated to conserve the constitutional order of the Founders by confining judicial decisions to the text of the Constitution, as its provisions were generally understood by those whose consent made it law. Judicial activism is measured by the variance of court decisions from the limited range of meaning which the Constitution's text, properly understood, can bear, and not by their variance from certain decisions of the Warren Court or other extra-constitutional principles now in vogue.

Justice Scalia believes that the judicial impulse to activism originates in the common law education American lawyers receive. At one point judge-made or common law -- "common" because it is the law governing quotidian activity, from contracts and property transaction to tort claims -- merely reflected social and commercial usage, but sometime after the thirteenth century essentially became the application of judicial reason to the controversies of the day. Judge-made law grew in the general absence of statutory or enacted law. In law school, students learn to comb through centuries worth of Anglo-American court decisions, distilling from them the rules judges created to decide the cases before them. After these rules of decision are identified, professors and their students debate the policies underlying each decision and whether a more effective or more just rule can be imagined. As the justice points out, this can be exciting experience, as it all "consists of playing king -- devising, out of the brilliance of one's own mind, those laws that ought govern mankind." When law students become lawyers, and lawyers judges, they naturally carry with them the common law habit of judging and creating law according to their own private notions of justice.

This common law education lingers today despite the proliferation of enacted law, originating in the 1930s with the New Deal and continuing unabated through today. Judges deciding even commonplace cases today do not face the open canvass of the common law as did their predecessors centuries ago, but vast tracts of statutory and regulatory text. But the common law skills and habits learned in law school persist, and when confronted with often haphazardly drawn statutes, littered with ambiguities, the temptation to impose one's personal prejudices is often too great for a willful judge to resist. The greatest temptation of all -- with faint promises of jurisprudential immortality -- comes when a judge has to interpret the broad phrases of the United States Constitution.

The notion that the Constitution is a "living document" is common currency in legal and non-legal circles alike. The antique rights of Englishmen, the argument goes, cannot be chiseled into the constitutional granite of colonial America, fixed and indifferent to the pleas of modern society. Instead, the Constitution must be "launched upon a historic voyage of interpretation in which succeeding generations . . . [will] elaborate what the text means in ways all but certain not to remain static" (in Professor Tribe's formulation) ; and sometimes it's provisions must grow and develop to reflect "the evolving standards of decency that mark the progress of a maturing society" (in one of Justice Brennan's formulatons). The discovery or creation of new constitutional rights, and the adaptation of old ones, is possible "only through the processes of moral philosophy," as Professor Tribe admits. Of course, this ethereal voyage of interpretation is captained by our law-trained elite, taking as their polestars their private notions of social justice.

Rating:
Summary: Loyal to the Language and Letter of the Law...
Review: This book is a must for anyone interested in the debate surrounding statutory interpretation and constitutional law. I began law school and before I knew anything - I mean a TOTALLY blank slate - about the Justices on the Supreme Court I quickly learned that I was "supposed" to hate Justice Scalia because he is a "stupid racist/facist/sexist" etc. Ironically, the more I learn about Scalia the more I understand why he is hated by the liberal left: Scalia doesn't sell out the law to political correctness. I, for one, admire that, but I don't pretend that isn't so because of my own political ideology. However, it is certain that Scalia is a brilliant and learned jurist, and, regardless of your politics, his judicial philosophy is wonderful to study.

Reserve judgment on Scalia and his Textualism until you have read, understand, and have digested the debate and Scalia's position. Be sure to ask yourself throughout the book: is the law certain? If not, ought the law be certain? If so, how ought one interpret statutes to facilitate and/or preserve the most possible certainty in the law? To underestimate Scalia is unfortunate; to dismiss him because he doesn't decide cases "your way," without considering his jurisprudence, is flat out ignorant.

Rating:
Summary: Legal tour de force
Review: This book is a real treat for anyone who loves legal (constitutional that is) thought. It would also make a great introduction into what several of the greatest thinkers in the Anglo-American legal profession think. The book is mainly a lecture by Scalia where he lays out his theory of 'textualism,' that is closely grounding constitutional interpretation to the original meaning of the words of the constitutional (or statutory) text. It is a spirited explanation of the theory and includes defenses against some of the more common attacks on the theory. But the book gets better. Four legal experts, Laruence Tribe, Ronald Dworkin, a historian and Glendon all give their comments on textualism. Scalia then replies to these comments at the end. A wonderful look into debate between five incredible minds who often diasgree.

Rating:
Summary: Legal tour de force
Review: This book is a real treat for anyone who loves legal (constitutional that is) thought. It would also make a great introduction into what several of the greatest thinkers in the Anglo-American legal profession think. The book is mainly a lecture by Scalia where he lays out his theory of 'textualism,' that is closely grounding constitutional interpretation to the original meaning of the words of the constitutional (or statutory) text. It is a spirited explanation of the theory and includes defenses against some of the more common attacks on the theory. But the book gets better. Four legal experts, Laruence Tribe, Ronald Dworkin, a historian and Glendon all give their comments on textualism. Scalia then replies to these comments at the end. A wonderful look into debate between five incredible minds who often diasgree.

Rating:
Summary: Fascinating Discussion as viewed by Outsider
Review: Understanding the legal lingo is difficult to begin with for those outside the judicial profession. Some writers add to this with their scholarly padding while others communicate quite clearly what they hope to. Scalia certainly fits in the latter, Tribe the former.

Scalia it would seem proposes what true Biblical exegeis seeks, to find the original intent, while Tribe hedges on this even being possible. As Scalia succinctly puts it in his reply, "if one can't interpret original meaning in the Constitution, can we have any fair statutes?

Salient was this Scalia retort to Tribe: "Prof. Tribe takes refuge in candar and ... self-conscious humility. Rejecting base certitude he acknowledges that he does not know the answer to either of these questions. Indeed, he is not even sure and mean to disparage candor and humility, virtues that are not only admirable but also rare, particularly in intellectual circles. They would assuredly carry the day if the issue before us were quality of character, rather than soundness of interpretative theory. But they are of little use to the judge who must determine whether and whither the Constitution has wandered, and who is not permitted to render a candid and humble judgment of undecided."

Amazed as questioning of inclusion of Constitutional interpretation while entertaining statutes. Does not the Constitution form the basis for all law?

Scalia easily carries the day in this excellent discussion.