A Matter of Interpretation: Federal Courts and the Law
by Antonin Scalia
Princeton. 159 pp. $19.95

In the 1950’s, when the Supreme Court under Chief Justice Earl Warren began to restructure American politics and society along the lines of a rights-based liberalism, it relied heavily on expansive readings of the abstract constitutional language of “equal protection,” “due process,” “cruel and unusual punishment,” and “freedom of speech.” It even relied, in an opinion by Justice William O. Douglas, on “penumbras, formed by emanations” from the Constitution’s abstract language.

For those opposed to the Warren Court’s methods—and some were opposed to its methods even when, as in the case of Brown v. Board of Education, they agreed with specific decisions—this playing fast and loose with original constitutional meanings portended nothing short of disaster. The arguments of such people, however, were countered by proponents of judicial activism with reassurances that the Constitution was a “living” document that evolved as society evolved. And so, back and forth, the debate went.

That debate is hardly over, though in the end it may only prove that our courts lack any intelligible theory of interpretation whatsoever, statutory or constitutional. And in the meantime, the Supreme Court has kept on doing what it does, which is essentially whatever it wants. While there is a kind of free-floating discontent over this state of affairs, which periodically erupts in events like the November 1996 symposium in First Things, “The End of Democracy?,” there has been nothing like a real revolt. Instead, the American public, and American politicians, now play the Supreme Court’s game: if the Constitution only means what it “ought” to mean under changing moral standards, why not try to ensure, through the appointment process and otherwise, that judges share the public’s morality?

The unhappy consequence of all this for constitutional rights is the subject of this book. It comprises a lecture by Justice Antonin Scalia, who joined the Supreme Court in 1986, together with comments on the lecture by Mary Ann Glendon, Laurence H. Tribe, and Ronald Dworkin, who are professors of law of differing ideological dispositions, and by Gordon S. Wood, a professor of American history. In his lecture, Scalia focuses on the reluctance of American judges to respect the laws written by democratic institutions. He blames this on a mindset derived from the study and practice of the common law, and urges in its stead the use of an interpretative method called “textualism.” This, he believes, might yet “induce judges, as we have induced presidents and generals, to stay within their proper governmental sphere.”

Scalia very amusingly describes the typical American legal education with its worshipful reading of opinions by great jurists, starting with the early English judges who created the common law in their capacity as agents of the king. All lawyers, he writes, want to emulate such judges, to think deep thoughts and do “broken-field running” through legal rules and precedents in order to get to exactly the proper result. And Scalia concedes that such an education is useful for the large part of state law that is still based on common law. But in the federal courts a different system prevails: not common law but the law that is set out in the codes, constitutions, and statutes drawn up by democratic institutions. And here, in Scalia’s view, is where the trouble starts.

American judges, with their common-law, “Mr. Fix-it” mindset, treat statutory and even constitutional laws as so many obstacles to sidestep or avoid. Using a variety of devices, they pick and choose from various sources, including legislative history (which Scalia is famously hostile to), only to end up miraculously discovering that the true “intention” of the original lawmakers was the same as their own. Because constitutional decisions are so hard to reverse, Mr. Fix-it interpretation has given us, in Scalia’s formula, a “morphing” Constitution, one which always means what the judges believe it should mean.

Scalia’s remedy for Mr. Fix-it interpretation—“textualism”—seeks to establish not the lawmakers’ “intentions” but the fair meaning of the words they used when they wrote the law. Words can never be given meanings they cannot bear, Scalia writes, and may thus have to be limited to only some of their possible meanings. Textualism—which, as applied to the Constitution, is also known as “originalism”—requires close attention to those words and, especially, to how the public would have understood them at the time they were written. As it happens, Scalia believes that the original meaning of a constitutional text is usually rather easy to determine, far easier than interpreting a text that is “evolving.”

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The exchanges between Scalia and his commentators (to whom he also responds) are of unfailing interest. Gordon Wood, the historian, sympathizes with the notion that modern judges have “run amok,” but sees this as a problem that goes deep in our history and is not easily remedied. The conservative legal scholar Mary Ann Glendon, in a particularly illuminating comment, describes the highly developed interpretative methods of civil-law experts in Europe, showing how interpretation as practiced by the German Constitutional Court in particular has rightly made it the most influential such body in the world. As for Laurence Tribe and Ronald Dworkin, both well-known judicial activists of the Left, each takes sharp issue with Scalia. Both are clearly stung by the implication that they favor a “morphing” Constitution; to the contrary, Dworkin claims to be an originalist himself, and Tribe to be at least a kind of textualist.

For Dworkin, however, the “original” purpose of the Constitution—and, for him, this is infallibly signaled by the very abstractness of its language—was less to protect specific rights as then understood than to require judges to interpret and “revise” those rights “generation by generation.” Tribe, for his part, also believes the Constitution enacted many abstract principles (“aspirations”), but he does not like either Dworkin’s or Scalia’s method for finding their meanings; he himself offers “candor,” “humility,” and tentative “insights and perspectives” by which to understand constitutional provisions that were “launched upon a historic voyage of interpretation.”

The differences among these views are well illustrated by the question of the constitutionality of capital punishment. The Fifth and Fourteenth Amendments require proper procedures before depriving a person of life, and the Eighth prohibits cruel and unusual punishment. Read together, these provisions must mean that capital punishment as such is not cruel and unusual, although certain forms of it (like the “death of the thousand cuts”) might be.

Scalia thinks “no textualist-originalist interpretation that passes the laugh test” could hold that capital punishment was unconstitutional. To Dworkin, by contrast, this is “bizarre”; once the judges, on behalf of society, conclude that capital punishment is cruel and unusual—and in his view they certainly should so conclude—the Eighth Amendment authorizes them to trump the Fifth and Fourteenth. And Dworkin, mind you, claims to be an originalist. Laurence Tribe, meanwhile, says he has not yet made up his mind on the issue.

Nor do the contributors to this book, prominent and important though they are, exhaust the current possibilities of constitutional interpretation, on capital punishment or any other issue. There are, for example, the critical-legal theorists who hold that law is determined by patterns of economic, racial, or sexual power in society. Then there is the pragmatism of Richard Posner, who argues that if law “works,” it does not need theoretical foundations to support its legitimacy. And there is the postmodernist theory associated with Stanley Fish, according to which a text has no determinate meaning, but the interpretative “community” will in practice agree on a range of meanings.

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At this point one may be tempted to throw up one’s hands altogether and agree with Gordon Wood and Mary Ann Glendon, who despair that there is, really, nothing to constrain American judges from manipulating the text as they will. But does that mean, then, that one should join the recent well-organized campaigns to appoint more judges who agree with the public’s sense of things? To this, Scalia raises still another powerful objection.

In his view, most judges have already come to share the moral disposition of the American majority, and to act on that shared understanding; unlike many conservatives, he even believes that, by now, Roe v. Wade, the 1973 abortion decision, reflects this shared morality. So, if there was once reason to fear that the courts would exploit the vague language of the Constitution to override the wishes of the political majority, now there is, as well, reason to entertain the opposite fear: namely, that judges will side with the “people” to override rights which the majority no longer happens to care about as much as the Framers did, no matter how clearly those rights may be stated in the Constitution itself. Scalia notes how, for example, with the apparent approval of today’s majority, the current Court has “gutted” property and contract rights and has limited specific procedural rights of criminal defendants, and predicts that more will follow. After all, constitutional rights are not on a ratchet, always increasing and never slipping back.

Liberal reviewers of A Matter of Interpretation have largely ignored this final and, to Scalia, crucial point, instead accusing him of misusing textualism and originalism as a blind for the enforcement of conservative traditions. But Scalia is dead serious; the only thing his argument reinforces—and powerfully—is, again, the crying need to “induce judges . . . to stay within their proper governmental sphere.”

When Scalia joined the Court, many hoped (and others feared) that, being charming and congenial as well as brilliant, he would build a coalition to swing the Court in precisely that direction. His counter-model was Justice William Brennan, a coalition builder for the “living” Constitution so effective that he even captured his successor, David Souter (who apparently will be “channeling” for Brennan for decades to come). So far, however, Scalia has yet to build that coalition for restraint. Perhaps the task of persuading his colleagues not to be Mr. Fix-its is truly an impossible one. But if so, what do we need a Constitution for at all?

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