Justice Scalia has once again embarked on a defense of textualism, the theory of interpretation that argues one must look back at the original text and stick to the text when deciding a case. There is an enlightening debate between Judge Richard Posner and the book's co-author, Bryan Garner in the pages of The New Republic (see cites below,) which spilled over into several online blogs including the National Review Online.
All of us seek objectivity from the courts. That justices would want to base their decisions on some objective standard is laudable. Yet, we also want some common sense flexibility. Posner believes that Garner and Scalia are being obtuse if not disingenuous. Take the example of a statute that says, “ No person may drive any kind of vehicle in the park.” Now let’s say someone in the park is stricken with a heart attack. None of us would want to prohibit an ambulance from driving into the park, yet that’s a clear violation of the statute and a true textualist would *have* to permit prosecution of the driver, yet even Scalia and Garner refuse to go that far, so the line between true textualism and broader interpretation is variable indeed.
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
Garner and Scalia insist that legislative history and debate should not be a source for judges when making decisions, yet Posner shows how Scalia has made exception to this dictum on numerous occasions. This, Posner suggests, hobbles legislatures and predisposes them toward smaller government. Well, duh, isn’t that already the predisposition of conservatives (I hesitate to align small government with conservatism since government has often grown exponentially during the tenure of supposedly and self-anointed conservative presidencies.) Ironically, one might argue that a textualist approach to the ambulance problem cited above would lead to more rather than less regulation since the legislature would be forced to create new regulations defining vehicular exceptions to the original rule. Yet, legislative history showing that the purpose of the legislation was to prohibit ambulances would certainly be on-point.
Context can also not be ignored. The word "draft" depends for its meaning on context. It could refer to curtains blowing in the wind; conscription during wartime, the preliminary sketch of a book; or even a bank note. Scalia and Garner insist that meaning will come from other text in the statute. Nonsense, says Fish. "No, it won’t. Take the sentence, “Let’s avoid the draft.” It could mean “let’s get out of military service” (a fourth meaning of “draft”), or it could mean “let’s go inside and diminish the risk of catching cold,” or it could mean (as spoken by a general manager of a professional sports team) “let’s bypass the unpredictability of the draft (a fifth meaning of draft) and trust in free agency,” or it could mean “let’s not do a draft of the bylaws (a sixth meaning of “draft”) but get right to the finished product.” The text does, as Scalia and Garner say, take it meaning from its purposive context, but the text won’t tell you what that purposive context is."
Scalia, in the meantime, has gone on the offensive. "Scalia denied that he uses legislative history in his decisions: “We are textualists. We are originalists. We are not nuts.” Apparently, Chief Justice Roberts is. The recent decision validating the Affordable Health Care Act (King v Burwell, 2015) Roberts wrote: “In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
Personally, in reading the decisions of Heller and MacDonald, and in listening to the oral arguments, it seemed to me that both sides were looking to original intent and legislative history for their own cherry-picking and from differing time periods, the minority looking to the fear of slave rebellions and hence the need for militias in 1789 while the majority focused on the need for individual armament for blacks to defend themselves against marauding whites after the Civil War. Posner, in his rebuttal, takes Scalia to taks for doing just that: " I said that “when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions—as he did 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.”
Stanley Fish, in his praise of the book, perversely also noted that the “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into judicial realm of naked political preferences” is wrong. Fish also scolds Scalia, "in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends — but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” (I believe he was quoting Justice White in Hooper v California, 1895.)
Posner ends his review with, “Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.”
I wondered if Scalia was wise to embark on writing this book. It would seem that his theological canons make him a target for some serious textual parsing.
Regretfully, I fear that Michael Dorfman's comments may be closest to the mark, another validation of confirmation bias. "The core claim of Scalia and Garner is that textual originalism is determinate in a way that other interpretive methodologies are not. If that claim were true, one would expect to find that the votes of judges and Justices who describe themselves as textualist do not strongly correlate with their ideological views, while judges and Justices who reject textualism do vote in ideologically predictable ways. Yet in fact, all judges vote in ideologically predictable ways."
Me? I just want fairness, common sense, and to be left alone. But I sure love the debate. Reading the differing points of view has provided this old man with several very entertaining hours of pleasure.
Garner's response: http://www.tnr.com/article/politics/107001/how-nuanced-justice-scalias-judicial-philosophy-exchange?page=0,0
http://www.chicagotribune.com/news/chi-scalia-posner-fight-20120918,0,7108932.story and Posner's response: http://www.tnr.com/blog/plank/107549/richard-posner-responds-antonin-scalias-accusation-lying
The National Review's response to the Posner review. :http://www.nationalreview.com/bench-memos/315643/richard-posner-s-badly-confused-attack-scaliagarner-ed-whelan#
Stanley Fish: http://opinionator.blogs.nytimes.com/2012/07/16/intention-and-the-canons-of-legal-interpretation/
edited 7/2015 to add King v Burwell and make some editorial corrections