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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: Antonin Scalia: Self-Hating Judge
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.
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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.
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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.
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