Bruce Fein’s brief endorsement of Scalia’s ‘Textualism’. Publius comments

When I first read this tweet from The American Conservative,  authored by Bruce Fein, I was startled that anyone would defend Scalia’s conception of ‘Textualism’, no matter the context.

As Justice Antonin Scalia endlessly lectured, what matters in constitutional interpretation is that the text that was ratified, not words bandied about during debate

https://www.theamericanconservative.com/articles/the-constitution-is-crystal-clear-on-birthright-citizenship/

I recalled reading Robert Post’s essay ‘Justice for Scalia’ in the June 11, 1998 edition of the New York Review of Books. Which was a review of  A Matter of Interpretation: Federal Courts and the Law,by Antonin Scalia, edited by Amy Gutmann, with commentary by Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon and Ronald Dworkin.  After much kow-towing to the Great Man, Prof. Post finally begins his polemic against Scalia:

Most litigation in federal courts involves the interpretation of statutes. Yet, as two prominent law professors have put it, the “hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”1 Uncertainty in the interpretation of legislation adversely affects not only lawyers and judges, but all those who seek to live by the laws. In A Matter of Interpretation Scalia is right to call for a vigorous reassessment of our practice of statutory interpretation. His book’s main contribution is to remind us that legal authority attaches to the text of a duly enacted statute, not to the unenacted intentions of legislators.

Questions of interpretation arise when the meaning of a statutory text is not clear. Scalia believes that the theory of textualism requires courts to determine statutory meaning by referring to ordinary language usage, to generally accepted rules of construing texts, and to other legislation that has been passed. The chief theoretical position that Scalia wants to defend in A Matter of Interpretation is that courts ought scrupulously to avoid referring to legislative history when they are attempting to understand an ambiguous statute. Legislative history consists of items such as committee reports, floor debates, and legislative drafts—all the available documents and statements that accumulated while a statute was being passed. Scalia writes: “I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law.” Scalia fears that if judges can rely on legislative history, courts will engage in “judicial lawmaking” by seizing on one piece of evidence or another to write their own preferences into law.

Scalia’s relentless campaign against the use of legislative history, and his refusal to join opinions interpreting statutes by referring to that history, have been astonishingly effective. One recent study estimates that the proportion of Supreme Court opinions in cases involving statutory construction that refer to legislative history has dropped from 100 percent in the 1981 term to 18 percent in the 1992 term.2 Scalia may justly claim a large share of the responsibility for this transformation.

For this reason it is all the more important to stress that Scalia’s opposition to the use of legislative history rests on exceedingly shaky theoretical foundations. Scalia readily acknowledges that if the meaning of a text is unclear, “the principal determinant of meaning is context.” In ordinary life the intentions of a speaker are central to the process by which we determine his meaning. If someone casually observes that “Casey has thrown a disc,” I would want to know something about the speaker’s intention in order to understand whether the comment refers to the state of Casey’s back or to the integrity of his CD collection.

Scalia does not dispute this, and he even concedes that there may be extreme cases where legislative history may be consulted in order to determine whether there has been a “‘scrivener’s error,’ where on the very face of the statute it is clear to the reader that a mistake of expression…has been made.” In his commentary, Ronald Dworkin cannily seizes upon this concession and brings out its implications.

https://www.nybooks.com/articles/1998/06/11/justice-for-scalia/

In my search for the Story essay, I came across the August 23, 2012 essay by Richard A. Posner titled ‘The Incoherence of Antonin Scalia  Scalia’ at The New Republic. Which is a review of a book by Justice Antonin Scalia and the legal lexicographer Bryan Garner titled Reading Law: The Interpretation of Legal Texts, 2012.

Posner wastes no time kowtowing to Scalia, perhaps because he has an ego to match that of Scalia. This polemic is first of all well written, and scrupulously argued and focused on exposing the ‘Textualism’, that Scalia makes the center of his Legal Theorizing, is on close analysis, without merit backed by incompetent or just disingenuous arguments.

The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). 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.

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.

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.

https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism

‘Textualism’ appears to be just so much ideological window dressing for Scalia’s ‘Originalism‘ , yet even ‘legislative intent’ also plays a part in the thought of the later Scalia. These two essay deserve to be read in their entirety, such in their importance.  In dismantling the myth that Scalia was a formidable legal theorist. When he is, in fact, an American Political Romantic, in the guise of a pugnacious bully whose arguments are steeped in a self-serving intellectual dishonesty.

Publius

 

 

About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer.
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