A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series)

In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation from varying standpoints.

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.


Defender of America's Constitutional Order, Part 1.   December 12, 2000
 24 out of 35 found this review helpful

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.

Antonin Scalia: Self-Hating Judge   January 5, 2003
 22 out of 62 found this review helpful

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.


A fine critique of modern legal philsophy in the US.   December 18, 1997
 20 out of 25 found this review helpful

Antonin Scalia is blessed with a powerful intellect and a persuasive manner of expression. It's about time that a member of the US Supreme Court explained in terms intelligible to the average "newspaper reader" just what is going on in federal appeals courts. If not all of Justice Scalia's recommendations are correct, he certainly, at long last, has been able to ask the right questions. Proponents of judicial activism (and Scalia graciously shares space with two of the most famous, Tribe & Dworkin) will be hard-pressed to keep up the pretense that federal courts today are much more than arenas for elite social engineers to rework society in their own image and likeness. A fine study in modern legal philosophy, I recommend this work with few reservations. My complete review of Justice Scalia's book can be found in "National Catholic Register" 26 Oct. - 1 Nov. 1997, p. 6. I have seen the review posted on the Web as well.