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.
