It’s a scary book, in every conceivable way. It’s big. It’s heavy. It’s 567 pages. When it arrived on my doorstep, I was afraid to touch it. And it’s written by Supreme Court Justice Antonin Scalia and Black’s Law Dictionary editor Bryan Garner, with an introduction by Chief Judge Frank Easterbrook. It’s like inviting death into your home.
And yet it was good. Really good. Well, let’s qualify that by saying Reading Law, published by West (who begrudgingly sent me a free review copy) is made up of two writings, one a polemic arguing why textualism is the only legitimate approach to the interpretation of law (and why all other approaches are wrong, wrong, wrong) and a second providing a massive survey of the canons of construction, divided up into small bites and exceptionally well explained.
The philippic is called an “introduction,” consisting of 46 pages, duly footnoted, explaining why Scalia’s approach to the interpretation of laws is the only right one possible. While he’s often called an “originalist,” he obviously prefers to be characterized as a “textualist.” He defines his view:
Theories of legal interpretation have been discussed interminably, and often so obscurely as to leave even the most intelligent readers–or perhaps especially the most intelligent readers–befuddled. So why would we add to the number? In fact, we do not. Far from proposing yet another novel approach, we seek a return to the oldest and most commonsensical interpretive principle:There you have it, in a nutshell. It covers the originalist implication, without appearing overly slavish, as if it’s just a matter of obvious necessity since it makes no sense at all to give meaning to words that didn’t exist when they were written.
In their full context, words mean what they convey to reasonable people at the time they were written–with the understanding that general terms may embrace later technological innovations.Hence a 2012 statute referring to aircraft, if still in effect in 2112, would embrace whatever inventions the label fairly embraces, even inventions that could not have been dreamed of in 2012. The exclusive reliance on text when interpreting text is known as textualism. We believe that this approach elicits both better drafting and better decision-making.
The theory rejects some of our long-held sacred cows. For example, they ridicule the notion that legislative history should play any role whatsoever in interpretation, arguing that it’s a meaningless front for lawmakers to grandstand. They persuasively argue that every legislator who voted on a statute has his own reason, and no writing can possibly express the true “will” of the legislators as there is no such thing. Rather than consider the political marketing document that is used by bill sponsors (or the hearing commentary that is used by a bill’s opponents), stick to the words and ignore the fluff.
According to Scalia and Garner, their textualist approach has two primary virtues. The obvious is that they believe it makes for better judicial decisions, as the guys in the domed building get paid to write up laws, while the robed guys get paid to pass judgment on what they wrote. Not what they think, or what they think would have been a better idea. At least, that’s the argument.
The second purported benefit is that it forces legislators to write better laws, so that they can’t go off half-cocked, write up a piece of crap lacking meaning or viability, and toss it to the judiciary to make sense of it later, after Congress has adjourned and the good legislators are standing on street corners with their hands out, talking about the fabulous laws they enacted.
The fault in the argument seems readily apparent to me. What becomes of all those nice people who get swept up in the gap between the passage of a poorly drafted, grossly unconstitutional law, and the time the Supreme Court gets around to fully addressing what the text really means? It appears they’re just collateral damage under this theory, taking one for the team of principle.
Am I being alarmist when I raise this problem? Let’s see, Mistretta was decided in 1989, and a mere 16 years later, the Supreme Court decided Booker. How much damage could have been done during those 16 years? Well, tough nuggies. Nothing matters more than adherence to principle, and if a few bodies had to be laid to waste in the process, that’s just the price of intellectual integrity.
Except it’s not. As Scalia and Garner readily admit, it’s not so easy to decide which word in a text is the critical word that controls, or which canon of interpretation rules the day. They acknowledge that the canons, even their own beloved textualist rules, can conflict, but resolve the problem with the facile resort to the one which gives the text its fairest meaning. Aha! The dreaded judgment call that gives rise to a judge imposing his values over competing values. The very method they deride unmercifully throughout the introduction. Go figure.
Ultimately, balancing comes into play. No matter how one may try to divine the meaning of a word at the moment it was written, by whoever wrote it, and disregarding the possibility that it was merely a compromise word intended to skirt the problem of precision, there is no way to avoid the ultimate resort to judges choosing one preference over another. And so we’re back to the very evil this argument tries desperately to avoid.
Nonetheless, the introduction is a fascinating read, with Scalia (I presume) throwing in gratuitously snarky commentary. Hint: Never invite Scalia and Richard Posner to a dinner party unless you want a food fight.
As for the balance of the book, a lengthy recitation of canons on construction, it’s a master class. The book includes a glossary of terms, and an index that spends more times on names than on rules, which is unfortunate. Still, Reading Law has a place on the shelf for its rules alone, which will well serve every lawyer who needs to argue the meaning of a statute.
And as for a statute that regulates aircraft in 2112, the seats will likely still be too small, the drinks too expensive and the text of the law ridiculously inapplicable. And there remains a decent likelihood that the law passed today will still be on the books, as textually worthless then as it is now.