Peter Wehner of Commentary details on the “Contentions” blog U.S. Supreme Court Justice Antonin Scalia‘s efforts to detail his approach to judicial interpretation.
Justice Scalia is on a media tour promoting a book he has co-authored (with Bryan Garner), Reading Law: The Interpretation of Legal Texts. It offers what the authors consider to be 57 valid canons of construction and dispels 13 false notions about legal interpretation.
The time has come, Justice Scalia told the Wall Street Journal, “to sum up the things I care most about with respect to the law.” The main controversy among judges, he said, “is not conservative vs. liberal. The main controversy is how to approach the application of legal text.”
The book’s preface and introduction beautifully frame the competing judicial philosophies in the modern era. On the one side are textualists like Scalia and Garner, who “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.”
On the other side is purposivism (where the author’s purpose, not text, is king), consequentialism (which argues that statues should be construed to produce desirable results regardless of what the text may say), and those who argue that a text has no independent meaning apart from authorial intention, which means interpretation is wholly subjective and left completely up to the interpreter.
What connects all these theories is the effort to, in the words of Scalia and Garner, “avoid the constraints of a controlling text.” The appeal of this approach is obvious: it allows judges to effectively write legislation rather than merely interpret it. They can encode into law their own political views. There is something tempting, even intoxicating, in “letting the intangible, protean spirit overtake the tangible, fixed words of authoritative texts.”
The discussion might remind you of remarks Scalia made about originalism during a 2007 presentation to a Jesse Helms Center audience in Cary.
