Antonin Scalia (1936–2016)

A great introduction into the now nearly dominant legal philosophy of textualism and originalism. Scalia's article reads like a manifesto that pithily summarizes the opening volley of a frontal assault on the then existing interpretive schemas. Even if one does not agree with Scalia, (for example, I am not totally sold on many of his ideas), it is worth reading because of the influence of his ideas (for people who despite him, know thy enemy). The main article basically summarizes the main tenets of textualism that I learned in my first year course "legislation and regulation" (in fact, even the three semantic canon examples Scalia uses are the ones I learned in the course along with a sustained critique of the famous Dueling Canons article). The article lays out the theoretical and practical issues with trying to read legislative intent (the words enacted, not unexpressed intention are the law and the "legislature's intent" seem often to match the policy preferences of the judge respectively). Scalia also discusses the illegitimacy of legislative history as manipulatable by lobbyists, unhelpful or illegally creating lawmakers. Scalia discusses how textualism is not the same as strict constructionism and uses famous US v. Smith case (whether someone trading a gun for drugs is "using" a gun in meaning of a criminal statute) as an example that distinguishes the two (between reasonable construction and literal reading). Scalia also takes the time to mourn the common law practices that he sees as imported to constitutional interpretation (most famously the living constitution concept) that makes the constitution overly pliable to the machinations of clever judges. Scalia argues that this is fundamentally undemocratic, and a subversion of the purpose of the constitution as protecting rights from the flows and ebs of unsustained popular opinion. To curtail this, Scalia suggests originalism, and looking at the publically understood meaning of the constitution at the time of adoption, any other interpretive method is dismissed as giving judges undue power.

Scalia's article itself is worth the price of admission, but the book contains comments by several renowned scholars (for the first time I recognize every name in a collection of essays, including the name of my property professor). The first comment is by Gordon Wood (my favorite historian), who expands a minor theme in radicalism of the american revolution, by tracing the history of judges in early american history. Wood claims that judges (even justices) were seen as political figures who saw nothing wrong with taking political sides and frequently co-served in political positions such as the cabinet. It was only later that the judiciary transformed into an independant and technical (legalistic) profession. Wood argues that while many lament the power of judges to set aside statutes in favor of the common law, this was a design and not a defect. Wood traces the history of how minor magisterial judges which were seen as extensions of the crown transformed into a coordinate branch of the legislature (which frequently acted like a court before). Wood also discusses the transformation of the constitution as a political document to be interpreted by all political branches into a legalistic document that gave the courts a monopoly over interpretation. At the very least Wood challenges many of the traditions that Scalia claims to be returning to.

Tribe's article discusses a theme he later develops in the Invisible Constitution, that of a lack of meta-rule for interpretation in the constitution (which itself would require a meta-rule ad infinitum, a variation of a Godel's incompleteness theorem) which requires looking beyond the four corners of the text to interpret the document. In fact, Tribe argues that the only amendment that guides interpretation is the ninth amendment discussing unenumerated rights. Tribe argues that Scalia's portrayal of the living constitution is a strawman and argues that the line that Dworkin and Scalia drew between general principle and specific rules is hard to pin down the certainty.

Professor Glendon's article looks at the issue through comparative law lenses. She notes the progress of civil law jurisdictions in adopting common law tools and the lack of comparable progress in the common law world to develop traditions of statutory interpretation (both Scalia and Glendon discuss how law school education tends to focus on reading appellate cases rather than any training in statutory interpretation, luckily this situation has been rectified since the time this book was written, at least at Harvard, Legislation and Regulation is a required first year class).

Finally, Dworkin discusses (seemingly preempting Balkin's thesis in Living Originalism) how certain general principles are understood even at the time of the founding to be abstract principles. Dworkin argues that Scalia's originalism seems to be based on the expected applications of these principles by those who wrote them, rather than the meaning the enactors intended.

Scalia responds to each comment in turn, (suffice to say that lawyers are good at arguing), and I'm not doing justice to the nuances and counterarguments that each author brings to the table. A highly recommended collection.… (plus d'informations)