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To Educate in the Permanent Things
March 5, 2013 | 27 comments
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The Law Is Above the Lawyers
Legal texts mean what they meant when written, as written. Neither more nor less.
Reading Law: The Interpretation of Legal
Texts
By Antonin Scalia and Bryan A. Garner
(Thomson West, 608 pages, $50)
Do not let its girth fool you: Reading Law by U.S. Supreme Court Justice Antonin Scalia and legal writing guru Bryan A. Garner is an accessible and straightforward clarification of originalism and textualism.* A guide for the perplexed and a manual of sorts for judges, this book presents 57 canons of construction. Each canon is formatted as a rule — e.g., “When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent” — followed by a short explanation of the rule.
Frank H. Easterbrook, who provided the foreword to the book, submits that originalism is not about determining legislative intent, but construing legislative enactment. In other words, originalists interpret as strictly as possible the words of the particular text and do not look to the earlier maze of political compromises, equivocations, and platitudes that brought about the text. Each legislator has unique intent; projecting one person’s intent onto the whole legislative body generates a fiction of vast proportion.
That the process of enacting a law is so rigorous and convoluted suggests the importance of adhering closely to the express language of the law; legislators, after all, have taken into account the views of their constituents and advisors and have struggled with other legislators to reach a settlement that will please enough people to obtain a majority. A judge should trust that painstaking process and not overturn or disregard it.
Originalism involves what Stanley Fish, the eminent Milton scholar and literary critic turned law professor, has called “interpretive communities.” That is the very term Easterbrook employs to describe how judges should account for cultural and communal conventions at the time a text is produced: “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 understood those words.”
To be sure, the original meaning of a text — what reasonable people living at the time and place of its adoption ordinarily would have understood it to mean — is never fully accessible. The meanings of old laws are particularly elusive. When a judge can no longer identify the context of a law by referring to dictionaries or legal treatises available when it was promulgated, then he should defer to the legislature to make the law clearer.
Judges should not impose their interpretative guesses onto the law and, hence, onto the people; nor should judges make new law on the mere supposition, however reasonable, that a text means something that it might not have meant when it was written. “Meaning” is itself a slippery signifier, and it is in some measure the aim of this book to simplify what is meant by “meaning.”
The book is not all about grammar, syntax, and punctuation. It has philosophical and political urgency. The authors propose that the legal system is in decline because of its infidelity to textual precision and scrupulous hermeneutics. A general neglect for interpretive exactitude and consistency has “impaired the predictability of legal dispositions, has led to unequal treatment of similarly situated litigants, has weakened our democratic processes, and has distorted our system of governmental checks and balances.” All of this has undermined public faith in lawyers and judges.
Scalia and Garner, who recently teamed up to write Making Your Case: The Art of Persuading Judges (Thomson West, 2009), proclaim themselves “textualists,” because they “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’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Most of us, they say, are textualists in the broadest sense; the purest textualists, however, are those who commit themselves to finding accurate meanings for words and phrases without regard for the practical results.
Consequences are the province of legislators. A judge ought to be a linguist and lexicographer rather than a legislator; he or she must be faithful to texts, not accountable to the people as are elected officials. (Leaving aside the issue of elected judges at the state level.) The authors seem to be suggesting that their approach needn’t be controversial. Originalism and textualism are simply names for meticulous interpretive schemes that could lead judges to decisions reflecting either conservative or liberal outcomes. One doesn’t need to be a fan of Scalia to appreciate the hermeneutics in this treatise.
Never have we seen a plainer, more complete expression of originalism or textualism. Reading Law could become a landmark of American jurisprudence, numbered among such tomes as James Kent’s Commentaries on American Law, Oliver Wendell Holmes Jr.’s The Common Law, H.L.A. Hart’s The Concept of Law, and Lon L. Fuller’s The Morality of Law. Although different from these works in important ways, Reading Law is equally ambitious and perhaps even more useful for the legal community, especially on account of its sizable glossary of terms, extensive table of cases, impressive bibliography, and thorough index.
Every judge should read this book; every lawyer who cares about law in the grand sense — who takes the time to consider the nature of law, its purpose and role as a social institution, and its historical development — should read this book as well. If Scalia and Garner are correct that the general public no longer respects the institutions of law, then this book is valuable not only for revealing the root causes, but also for recommending realistic and systematic solutions.
* Originalism and textualism are not the same thing; this review treats them as interchangeable only because Judge Easterbrook’s forward uses the term “originalism” whereas Scalia and Garner use the term “textualism,” but each author appears to refer to the same interpretive approach.
About the Author
Allen Mendenhall is a Staff Attorney to Chief Justice Roy S. Moore of the Supreme Court of Alabama, the managing editor of Southern Literary Review, and a doctoral candidate in English at Auburn University. Visit his website at AllenMendenhall.com.
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Aristocat| 10.2.12 @ 6:40AM
Law schools have become so corrupted that Constitutional Law is not even taught any more. We have become a nation of "legal positivism"...the law is whatever John Roberts says it is, the Constitution be damned.
Gary B| 10.2.12 @ 7:22AM
It's human nature that attorneys and their clients will bring every kind of grievance (real or imagined) to the court. It is up to judges to toss out ridiculous claims and hear reasonable ones. The blame for our society sinking to its current state, where the tail is wagging the dog, simple words have lost their meaning and basic concepts turned inside out, can be laid squarely at the feet of judges. A pox on their houses.
Von Mises Jr| 10.2.12 @ 7:29AM
You are spot on Aristocat. As part of the Progressive effort to create the "Living Constitution," lawyers are taught in Law Schools most recent precedents without regard for the Constitution.
I met Greg Katsas whom argued the personal mandate for ObamaCare before the Supreme Court, as well as a lawyer whom was on the Harvard Law Review when Obama was at Harvard. They are both brilliant and insightful. But I asked each of them separately if ObamaCare Medicaid mandates will necessarily bankrupt many states, how we can have a Constitutional Federal Republic without Federalism. I thought that this was obvious, but both men appeared to have not considered it prior.
Gary B| 10.2.12 @ 8:56AM
Von Mises: Sorry to report that they are not both brilliant and insightful. They're merely clever, which is of little use to us as we attempt to salvage America. Give me Joe, the Plumber any day.
Von Mises Jr| 10.2.12 @ 9:07AM
I think I will agree and retract the insightful. These guys are very intelligent, but as Sowell points out in "Intellectuals and Society," intelligence is a vague concept.
We have at least a couple people in our family with photographic memories. These same people are also very analytical. But they lack to some extent the common sense of Joe the Plumber.
I only retain information if I study vigorously, but I am much more perceptive and rational like Joe the Plumber illustrated in his simple question.
Gary B| 10.2.12 @ 10:25AM
Yes, and here's another example. Do you doubt for one minute that the average housewife (remember that concept?) who manages her family's finances couldn't create a budget to whittle down the national dept all the way to zero? This assumes, of course, that all the cronies are already in jail.
Von Mises Jr| 10.2.12 @ 11:26AM
The average housewife or myself as the cook understands inflation when you see milk increase from $2.75 ranges to $3.75 in the last couple years. If it went up 35% in two years, you don't need a MA in mathematics to figure inflation is more than 2% per year. That's what living in the real world teaches.
While I must admit that I don't buy much milk, my beer budget is exploding.
Seek| 10.2.12 @ 1:46PM
Call it "the division of labor," but I would prefer that lawyers rather than plumbers interpret the law.
Gary B| 10.2.12 @ 4:06PM
Kinda' like the Supreme Court interprits the Constitution? I'll stick with plumbers. They don't play with language.
Bill8472| 10.2.12 @ 4:45PM
Plumbers don't play with language, eh?
Evidently you haven't heard the old saw that originated with plumbers: "The s**t always flows downhill."
Bill8472| 10.2.12 @ 4:47PM
I always chuckle when people quote Shakespeare to vent their revulsion at those awful lawyers: "First thing we do, let's kill all the lawyers."
Lawyers, once killed, would soon revive as a profession the first someone ran afoul of a law that he interprets differently from the law enforcers.
DRed| 10.2.12 @ 5:21PM
Whoever said that was a dick.
TLP| 10.2.12 @ 7:51AM
It's even Worse than that.
The LAW is what Obama and his S&M Media says it is.
Running Guns is Legal, now. NOT Enforcing the Laws On The Books is okay. ILLEGAL Drilling Moratoriums, in Violation of a Federal Judge's Ruling, doesn't matter. FORGING DOCUMENTS to that Judge, using your Energy Department and Interior Secretaries, is just plain Logical. Making Illegal Recess Appointments is all right, because EVERYBODY KNOWS that it is The President who decides when The Senate is in Session.
And, now we find out that this MFer, and his Lying B*tch Labour Dept. Secretary, are BRIBING Defence Cotractors to DISOBEY THE LAW. The WARN Act (Or, whatever it's called) MANDATING, Layoff Warnings be sent out to all potential Layoffees within a Specified Time Period. Usually 60 to 90 Days in Advance of the Layoff Date.
This Administration has offered these Companies Million$ to NOT Follow that Law.
And, some people wonder why Desperate Men take up Arms against their own Country. Men like Washington, John Paul Jones, John Brown, the Bonus Marchers, the Riots in Watts, Newark, and elsewhere.
This is Venezuela Bullsh*t.
This is Banana Republic Bullsh*t.
This is Putin Bullsh*t.
This is AMERIKA now, and this man has to go.
Be it from the Door of Air Force One, as he waves goodbye?
Or atop a Caisson, for one last Parade down Pennsylvania Ave.
Either way is fine with me.
Gary B| 10.2.12 @ 9:01AM
"...and this 'man' has to go."
He is not a man. He is a limp-wristed, metro sexual, do-nothing pussy, who has placed America under the control of two communist females, who are doing all the work on his agenda.
KennesawJack| 10.2.12 @ 1:44PM
With you up to the very end, Tim, and then you lost me. Why does this Marxist, Muslim, America-hating, bastard (and he is one 'cause his momma and his momma's baby daddy weren't legally married when he was born. Baby daddy was a bigamist, you see, and so the subsequent marriage to his momma was null before the law, but, I digress.) deserve a caisson for one last parade down Pennsylvania Ave? Better to set his sorry, socialist, dead ass on the curb in a garbage bag and have Mitt Romney's former garbage man carry it to the landfill. But then, Obamarx won't talk to him either, will he?
TLP| 10.2.12 @ 2:50PM
How did I lose you?
I want him gone.
One way or another.
As he would say, and how he has lived his Entire Adult Life - BY ANY MEANS NECESSARY!
What's the problem?
Please remember the MOVIE made about Killing George Bush.
The Book, describing HOW TO KILL GEORGE W BUSH.
Remember that POS on Comedy Central, showing a picture of George W. Bush with CROSSHAIRS over his face, with the words underneath it - SHOOTERS WANTED.
If you wish to Defeat Your Enemy?
You must BECOME Your Enemy.
Last I looked?
This ain't Beanbag.
KennesawJack| 10.2.12 @ 3:16PM
Timmy, I love ya' like a brother but I ain't giving this piece of shit a caisson ride down Pennsylvania Avenue. I want him gone as badly as you do. Just don't want Obamarx afforded honors reserved for REAL AMERICAN PRESIDENTS, not f**king Muslim, Marxist, America-hating imposters.
TLP| 10.2.12 @ 5:03PM
How about we Drag Him behind the Caisson?
KennesawJack| 10.2.12 @ 8:31PM
Now, that is a concept I can get my arms around.
TLP| 10.2.12 @ 5:30PM
And, as far as that Gal, that I gave an Anal to?
I respectively disagree that I owe her an Oops.
First, she goes through a litany of how Mormonism isn't really Christian.
Then, after ripping him apart for his Religion?
She says that she's still gone Vote for him.
So, why TRASH HIS RELIGION, in the first place?
That's called a Backhanded Endorsement, where I come from.
It makes no sense to TRASH HIM, from one side of your Mouth, and then Endorse him, from the other side.
We have a MUSLIM in the White House!
Who gives a Sh*t about Mormonism, compared to what we have there, now?
That's all I'm sayin.
What she said in the beginning was Bullsh*t.
And it doesn't help our Cause.
KennesawJack| 10.2.12 @ 8:33PM
I stand sufficiently chastized before the incomparable logic of your arguement.
RCV| 10.2.12 @ 11:47AM
What nonsense! Constitutional Law is taught in every law school I know of, and one of the core courses. Stop making garbage up.
TLP| 10.2.12 @ 3:02PM
Really?
Is it Constitutional to Forge Documents to a Federal Judge?
Is it Constitutional to go forward with a Drilling Moratorium, even after that same Federal Judge has DENIED your request to do so?
Is it Constitutional for a President to only Enforce the LAWS ON THE BOOKS, that he agrees with?
Is it Constitutional for a President to decide - ALL BY HIMSELF - what Laws are Constitutional!
Is it Constitutional for a President to decide when the Senate is in Recess?
Is it Constitutional to GO TO WAR, without any Consultation with Congress, in Violation of the Democrat's own Holy Grail - The War Powers Act?
STFU, until you can say something that isn't Total Bullsh*t.
Which is never.
RCV| 10.2.12 @ 7:14PM
Usual non-sequiter from the man who believes Hitler was sent by God to punish the Jews.
Albert Constantine Jr.| 10.2.12 @ 9:50PM
RCV;
Ironically, the Constitutional Law Course at the Widener University Law School was, until 2008, taught by then Senator Biden, who has time and again amazed all with his astute knowledge of the founding document. As such, while your statement might have some measure of accuracy, Aristocat's assertion is not necessarily disproven by the presence of a course in the catalogue or curriculum.
CJW| 10.2.12 @ 10:33PM
Just saw Biden on Greta saying that the "middle class has been buried for the past four years." Does Joey know who was president for the past four years, controlled Congress for two, and controlled the Senate for the past four years.
Interesting about Widener. Many of the Pa legislators attend Widener at night and get a law degree while in Harrisburg.
Albert Constantine Jr.| 10.2.12 @ 10:56PM
A large number of our deputy attorneys general are also Widener Law grads, from the Brandywine campus off US 202 north of Wilmington. After Biden's many gaffes (VAWA sections declared unconstitutional, 2008 VP debate), I figured they should receive a refund for the class.
Bill8472| 10.2.12 @ 4:40PM
Ah, but the judges are not the final authority on the law. They think they are, and a civilized society maintains that veneer over things for security's sake, but the fact is that many Supreme Court decisions never go anywhere as legal principles. We the People ignore them, and they eventually fail as precedent. Even the justices of the U.S. Supreme Court recognize that the People are the ultimate source of legal authority.
Bill8472| 10.2.12 @ 4:42PM
I suspect that the People ignoring the principle set by Kelo v. New London will eventually restore our Fifth Amendment just compensation right. We just find that principle unpalatable and we will eventually make our rejection felt.
Seapuss| 10.2.12 @ 8:47AM
"The Liberal Loom"
(or "Alchemy and the Law")
I give you Due Process—those two mighty words
But what of the greater, of which they're two-thirds?
We only need "Substance" to finish the brew—
To make all the words say what we say they do
Abracadabra! Zim! Zam! Boom!
We now have the thread for the liberal loom
We'll weave for the Emperor a new set of clothes
With privacy for buttons and abortion for bows
But don't say he's naked—keep your mouth corked
Otherwise the Senate will make sure you're Borked
JeMeRappelle| 10.2.12 @ 11:45AM
As a lawyer pointed out to me early in my career, "Lawyers view laws as applying only to the hoi polloi." He should have added a corollary, "especially when they become appointed or elected officials."
Bill8472| 10.2.12 @ 4:51PM
They sometimes think that until they get a DUI or they take some client's money, the client finds out about it, and makes an ethical grievance to the appropriate attorney regulatory agency.
You see, lawyers who think they're above the law frequently run into other lawyers who think they're not.
RCV| 10.2.12 @ 11:48AM
Just finished Justice Scalia's book, and it is indeed a pleasure to read and an excellent reiteration of traditional rules of judicial interpretation.
CJW| 10.2.12 @ 1:53PM
Scalia's "Making Your Case, The Art of Persuading Judges" is also excellent.
Albert Constantine Jr.| 10.2.12 @ 9:52PM
Angel Martin makes an appearance in Bowman's article today, if you get a chance to check it out.
CJW| 10.2.12 @ 10:30PM
Thanks. I had skipped the article when I saw it was about Richard Gere, something very creepy about Gere. He was perfect in Looking for Mr Goodbar, the creepy killer.
I agree that the Angel Martin role is a classic.
Albert Constantine Jr.| 10.2.12 @ 11:01PM
I got a chuckle when Gere tried to lecture the audience on pacifism in 2001 at the NYC fundraiser concert following the September 11 attacks. Talk about a man who doesn't understand his audience.
Intelligent Design| 10.2.12 @ 9:07PM
How did Obama ever get by Professor Kingsfield? Obama doesn't even know about Marbury v. Madison.