Book Review: Reading Law: The Interpretation of Legal Texts, by Scalia and Garner

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:

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.
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. 

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.

10 comments on “Book Review: Reading Law: The Interpretation of Legal Texts, by Scalia and Garner

  1. Ken

    I once went through a long textualist argument explaining to the Virginia Court of Appeals why its interpretation of a statute made no sense. I even included a sentence diagram showing how their interpretation was not viable. Shockingly, the Court was not moved and stuck by what it saw as the General Assembly’s intent when it wrote the statute (put offender in jail) without recourse to anything as pesky as legislative history. In fact, you see a rare opinion here and there where the text is the reason the decision, but far more often the Court takes it upon itself to impose the General Assembly’s purpose. But maybe things re different in other States.

  2. SHG

    They concede that the enunciated purpose is usable to provide context for the actual words used (though ancillary stuff, like legislative history and hearing reports are utterly worthless and should never be considered), but that even the enunciated purpose should never supercede the language used in the text. If the words fail to match the purpose, that’s the legislature’s problem, not the judge’s.

  3. SHG

    The word around the water cooler is Scalia wanted to use Bedazzled, but Garner talked him out of it. Garner didn’t want to push his luck.

  4. CRC

    “It’s a scary book, in every conceivable way. It’s big. It’s heavy. It’s 567 pages.”

    Sounds like Atlas Shrugged.

  5. Zachary

    I love your perspective. I disagree with about half of what you say, but the other half resonates really well with me; I’m politically conservative, for full disclosure, and I believe in narrow constructions of the constitution- so that’s primarily where I would disgree with you, if I have understood your writings that I have read thus far correctly.

    But your writing is great, your analysis is unique, and you are a very fair author- balanced in appoach, even to disagreement.

  6. SHG

    That’s very kind of you to say. I have no expectation that everyone (or anyone, for that matter) will agree with me, and certainly not about everything. That’s what makes life fun.

  7. Nigel Declan

    The problem with textualism is, and always will be, the fact that in the long-run, it becomes fundamentally impossible to determine either what legislators meant when they passed a law or how they intended it to apply to future situations clearly beyond their ken at the time the law was passed. When Alito chided Scalia regarding his analysis in US v. Jones, Alito was quite right to do so. As technology such as motor vehicles, airplanes and, especially, computers and the internet have developed, attempting to “textually| determine what the Founders would have thought about, say, violent video games or GPS systems seems more likely to result in the use of highly facile analogies.

    Unless Scalia has some magical power to ask Jefferson and Madison what they think about the making and distribution of digital copies of legally-acquired software amounts to nothing more that either guessing or, more sinisterly, pretending to come up with a “reasoned” analysis in order to justify a decision already made, essentially using textual analysis as a pretext to deliver an ideologically-driven presumptive decision. If a jurist is asking what George Washington thought about the internet, odds are more likely that the answer will reflect the jurist’s opinion of the internet, since it is highly doubtful George ever turned his mind to it.

    If textualism is to be even a moderately viable approach, there must be a provision to address situations where Amendments and laws were passed well before the subject matter of a future dispute came into existence. Narrow construction can be accomplished without pretending to read the minds of 200 year old dead men and by applying the Constitution in a manner consistent with the modern world.

  8. SHG

    The Scalia response (this is me guessing, since Nino didn’t tell me what he wants me to say on his behalf) is that the textualist would never care what legislators (or founding fathers, for that matter) had in mind, but rather what the words meant to a reasonable person at the time the law was enacted.  Thus, it would be irrelevant what the founding fathers might have thought about GPS or the internet, but rather how the words they used apply to such things.

    Of course, this is where we come back to the problem you raise. The words do not apply because we can’t attribute meaning to words now based on the existence of things never concieved of then.  As the textualist picks which words are “critical” and how to analogize the original meaning of the word to unforeseen changes, he’s playing the same game as the evolutionist, just hiding it behind textualist rhetoric.

  9. Matthew Brown

    Let me echo the regard for the quality of the review.

    The problem with textuallism to me is the failure to acknowledge the changes words go through over time; not basic meaning usually, but nuance, emphasis, common use. These subtle changes are usually not enough to overly distort meaning but in language attempting to avoid ambiguity the effect is magnified.

    I also can’t accept the logic of words having meanings not in existence at the time of their writing, or their meanings applied to concepts likewise not in existence.

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